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Joint Standing Committee on Electoral Matters
16/11/2016
Conduct of the 2016 federal election and matters related thereto

GREEN, Mr Antony John, Private capacity

[10:35]

CHAIR: Welcome. Do you have any additional comment about the capacity in which you appear before the committee?

Mr Green : I should point out that I work for the ABC; I am not expressing any particular views of the ABC here today. I am offering my expertise in the electoral system and electoral processes to the committee as an individual.

CHAIR: Although the committee does not require you to give evidence under oath, I should advise you that this hearing is a legal proceeding of the parliament and therefore has the same standing as proceedings of the respective houses. The giving of false or misleading evidence is a serious matter and may be regarded as contempt of parliament. The evidence given today will be recorded by Hansard and attracts parliamentary privilege. Thank you very much for appearing here today. I now invite you to make a brief opening statement before we open up for questions and discussion.

Mr Green : I will try to be as brief as possible. I worked on covering the Orange by-election on the weekend. By eight o'clock that evening we had the first preference voting results for every polling place; some of the two-candidate preferred results took slightly longer. The largest polling place was about 2½ thousand votes. We did not get the prepolls until after 10 pm. There were more than 11,000 of those. That highlights one of the issues where technology can come into play. We have seen the increasing number of prepoll votes being cast, but the Electoral Commission has enormous difficulty trying to count them. The size of the prepoll counting centres is enormous compared to that of polling places. They have to use staff who have not been otherwise allocated on the day, which means extra staff are employed just to count those votes. This is causing a delay in the vote. We get lots of votes on the night at the federal election, and while this was not why we did not have a clear result on the night, it is apparent to me that some of the big prepoll centres are taking a long time to come in, and so the count is extending later and later into the evening. We were still getting very large lumps of votes coming in from Western Australia at midnight, and that is caused by the sheer number of prepoll votes being cast.

In the talk of technology being used for elections, I would say that prepoll voting is an area where this technology should come into greatest play first. In the ACT, which takes nearly all of their prepoll votes electronically, nearly 20 to 25 per cent of their votes are taken electronically. That is mainly prepolls, with some on-the-day votes cast at the same centres that they use for prepolls. They are taking a quarter of their votes and delivering them within the first hour. All of the votes that were cast as prepolls in the ACT were delivered to the media by seven o'clock on the night, which was a good indication of what you can gain by using that technology.

I think the idea that we can introduce electronic voting broadly in Australia is a myth. The returning officers and the people looking after polling places have difficulty setting up just the partitioning and the tables to run a polling place. If you had to try to set up a computer network to take electronic voting on the day for a one-day polling place, it is not going to happen. But prepoll voting centres conducted over several weeks and taking ballot papers for multiple electorates have real advantages. You can set up the network, get it running and take the electronic votes for all electorates, not just for the home electorate. That is where this sort of technology should come in first, particularly in some of the big polling places like Sydney Town Hall.

If we do have electronic voting, I believe that it should be done with a receipt. Voters should be given a receipt of their vote, and that should be put in a ballot box on the way out as an audit trail, because for a time there will be concerns about whether the technology can be relied upon. If a paper backup is kept then that can be used as an alternative, at least for a period until we have confidence in the technology. I am a believer in attendance voting, not remote voting. I do not believe we should be introducing internet voting except for special purposes. New South Wales is now taking 6½ per cent of its votes via the internet. It has expanded much more quickly than was originally intended, and I am not convinced that we should be going down that path. I still believe that people should be turning up on the day and voting.

If you are going to take electronic votes and you want to count all electorates, including absent and prepoll votes, then you require a change in the act as to how declaration votes are dealt with. The Commonwealth act currently still requires that all ballot papers go to the home division, to the divisional returning officer, and the divisional returning officer is involved in counting all the votes. Mr Morton would be familiar with Western Australian elections, where all declaration votes are actually dealt with centrally. It is not done by the divisional returning officers; there is a central scrutiny. That deals with all prepoll, postal and—eventually—absent votes at a central location. A number of the other states do so too. New South Wales has moved heavily towards that. Most of the delays at the Commonwealth election were caused by the ballot papers having go back to divisional returning officers, which meant absent votes came in and went out. Federally, you also have a two-week delay with postal votes, whereas most of the states operate with only one week. So I do think you need to change some of the manual procedures with how divisional returning officers are dealt with.

I have also offered some other comments there about New Zealand and Tasmania, where fax and email voting are permitted. They cause some problems with making the vote slightly less secret than it should be, but they are cheaper alternatives than setting up expensive iVoting networks. In New Zealand and Canada prepoll votes are counted before the close of polls on election day. That is much more problematic in Australia because you do not necessarily have access to scrutineers. On-the-day campaigning is not permitted in New Zealand and Canada, and therefore scrutineers are readily available.

I have given some comment on the Senate. I still think the Senate ballot papers are too large, certainly at this election. I believe that we should change the procedures for nomination for the Senate so that Senate candidates require nominators, as independents do. I have raised the example of interstate candidates in Tasmania being nominated by registered parties, which allowed them to be nominated without nominators, while the independents in the state of Tasmania had to have nominators who were on the roll in the state. This will cause some delay in the processing of nominations for the Electoral Commission, but I think the advantage of that is that parties have to have on-the-ground people to nominate them; they cannot just nominate centrally when they have no presence in the state. I think that might deal with one issue on the size of the ballot paper.

I think the new electoral system for the Senate worked relatively well. Delays were clearly caused by people having to number more than one square as an issue. I have suggested a technical paper be done on aspects of the count. With a larger number of exhausted ballot papers, when a candidate's surplus is distributed we currently distribute ballot papers that have no further preferences, and they go into the exhausted pile. In New South Wales and the ACT, if a candidate's surplus is distributed and that ballot paper had no further preferences then they are not actually distributed at all; they remain with the elected candidate, and the ballot papers that get examined for distribution are the ones that have further preferences. It does not have a big impact on the count, but it may be significant at certain points.

The second concerns what is called the inclusive Gregory transfer values, as opposed to weighted inclusive Gregory transfer values. Mr Morton is nodding, because he has dealt with this in Western Australia.

Mr MORTON: I am looking forward to giving you a very succinct and user-friendly description of this issue.

Mr Green : I will give a simple example. I think it was at the 2010 Senate election in Queensland. The Greens reached a quota during the count, on the distribution of Labor surplus votes. At that point 90 per cent of the votes held by the Greens were Greens votes, but when the surplus was done, 70 per cent of the ballot papers were actually Labor ballot papers that had been transferred at an earlier count, and therefore in the surplus votes of the Greens that were distributed, because the transfer value formula is done on the basis of ballot papers, not votes, 70 per cent of the preferences were Labor preferences, not Greens preferences, even though the majority of votes were Greens votes. That is a problem. The reason it is done on a ballot paper basis is that the counts were originally done manually, and it was much easier to deal with the ballot papers. This is done with computers now, and I think this formula should be looked at. It has implications that need to be looked at technically, because we have many more exhausted preferences, but I think it would be worth the committee commissioning an expert in this area to do a paper which would suggest changes to the formulae on this subject. I am happy to take questions from this point.

CHAIR: Thank you very much for your excellent written submission, and also for your oral evidence today.

Mr GILES: Thank you, Mr Green, for an unsurprisingly interesting submission. I might start where you finished. We did hear some very interesting evidence from Dr Bonham in Tasmania a couple of days ago on this issue of dealing with the various methods of conducting proportional representation counts in the Senate. It does occur to me—and it had not until you put it this way—that perhaps getting a paper done by someone with qualifications might be a better way through than having those of us around the table who are mathematically challenged conduct inquiries. Would you have any suggestions as to where we might look to provide someone to do that work?

Mr Green : Narelle Miragliotta is an academic at Monash who did a paper for the WA Electoral Commission on this issue. There are some further complications to that original paper, which only dealt with full preferential voting. Once you have optional preferential voting, there are some issues to do with the form in which it should be dealt with. There are some people who have done work on this in Scotland and Ireland, where there has been much debate on these transfer value formulae, but I will deal with that outside the committee.

Mr GILES: On a related matter, I am aware that in the 2014 Victorian Legislative Council elections a different result would have occurred in the Northern Victoria Region had inclusive weighted Gregory rather than weighted Gregory been applied. Are you aware of any other examples where the method of counting changed the outcome?

Mr Green : That is the only one where I am aware of a problem. The case that came up in WA would not have changed the result, but it caused certain votes to increase in value at a key point. That is what you want to avoid. There are examples. A paper was done by Ian McAllister and David Farrell in the Australian Journal of Political Science several years ago, which conducted an example to show how it affects the result. It is something that should be looked at, particularly with the exhausted votes.

Mr GILES: I want to comment on how useful I found your recommendations around use of technology, and your rejection of technological determinism. This has been a theme in my approach to this inquiry: to be mindful of arguing out our first principles and then looking to apply the technological and other devices rather than the other way around, which has appeared to be a temptation. But one thing I was struck by—noting your very clear articulation of your first principles around the value of attendance based voting—is while we have seen in New South Wales a decline in postal voting at the last election and a very large increase in iVote, we have not seen such a pattern in respect of postal voting at the last federal election. Is that something you could comment on?

Mr Green : I think there are groups that specifically use postal voting. Older voters who are less mobile are much more likely to use it, as are people who are in distant rural areas. A permanent postal vote roll is also kept. Postal voting will decline as the postal service declines. It is now more expensive for the AEC to conduct these because they now have to pay the extra cost in ensuring delivery and return of letters. It is also harder and harder to know whether a postal vote is done on the day or before. That is one thing that is very much harder to do nowadays. iVoting is cut off at 6 pm. Nobody can iVote after—actually, I cannot remember in New South Wales whether it is on the day.

Member of the audience interjecting—

Mr Green : There is a cut-off in the afternoon. In New South Wales it was introduced as a replacement for postal voting, but there is nothing to stop it being a replacement in some ways for normal voting, which means you can provide it until six in the evening. I just think that there are always problems with security on internet voting. The bigger the numbers of internet voting, the harder it is to spot the errors. If internet voting remains at one or two per cent of the vote—overseas voters, remote voters and the like—then the chances of it being used to corrupt the process are minimised because the numbers of votes involved are smaller.

Mr GILES: You referred approvingly to the ACT's use of electronic voting mechanisms, and I think the AEC also spoke approvingly of it at an earlier hearing. They seemed to suggest that cost might be an issue in using similar techniques at a federal level. Is that something you are able to comment on?

Mr Green : Yes. I read somewhere recently that Phil Green, the commissioner in the ACT—he speaks about how he is able to. Because he knows the date of the elections, they are able to make use of the acquisition process of computers for the ACT Public Service. So, as people replace computers and the like, they are able to tap into either bringing forward those computers or using computers, keeping them online for longer. So they are able to make use of computers without significant extra costs. The problem with the AEC is that, as the election dates are variable, it is much harder to plan that sort of process. It is a significant expense, which is why you want to put it somewhere where you are going to have the most impact: things like prepolls and on-the-day voting at Sydney or Melbourne town hall, where you are dealing with vast amounts of paperwork or even, potentially, Australia House in London, which takes a vast number of votes. Somewhere like that, where you have voting for a period and you can set up the network. Then there is some cost advantage. Even though it is still more expensive than paper ballots, you are actually saving costs in other areas, like reconciling the ballot papers.

Mr GILES: On your Senate registration recommendations, picking up on the last JSCEM—and I think going a little bit beyond it in terms of the local enrolment for parties as well as independents—do you have any persuasive objections to going down this path?

Mr Green : Having nominators?

Mr GILES: Yes.

Mr Green : I am sure the AEC would be concerned that they are having to check these names—it would take longer to process nominations. Already there is a day allowed for party central nominations versus on-the-day polling. I think perhaps you might need another day between the close of nominations and the declaration of nominations so that, if there is an error in the checking process, the nominators can be told, 'You are missing two people; you will want to sort this out.' I think that would be an important thing to do, to extend that process.

Some people think I am obsessed with giant ballot papers, but you have to remember that this is a significant problem for the entire electoral process. It makes the voting process much more difficult for voters, because the ballot paper is much bigger than the voting space. It makes it more difficult to seal declaration envelopes. If you start getting declaration envelopes bursting because the size of the ballot paper makes it harder for the glue—because the glue is not strong enough to hold that amount of paper inside the ballot paper—you have a problem. If it is harder to scan, if it is harder for people to read—

CHAIR: And they do not fit in boxes!

Mr Green : To be blunt, I think it is a joke there we issue magnifying glasses to people for people to read a ballot paper. If you have a problem that people need a magnifying glass to read the ballot paper—there are no more candidates who are going to get elected from that ballot paper, but more and more candidates are appearing—I do think there is an issue there. If you look at the results of the election, there are vast numbers of candidates, of groups, that get tiny percentages of the vote. I have not done that exercise for this election. They have no chance of getting elected, but they are taking up space on the ballot paper which, in my view, is interfering with the process of people finding the candidates and parties that they do know amongst the vast numbers of people they do not know.

Senator WILLIAMS: Is payment for votes part of the concern?

Mr Green : They do not get paid for votes unless they get elected or they get four per cent, so they are not gaining anything in terms of money. There is a legitimate argument—elections are also about a process of getting your issues out there. There is a lot of criticism of micro parties, but some of those micro parties like the Socialist Alliance have been around forever and they have a perfectly reasonable right to get on the ballot paper and put their position.

Senator WILLIAMS: Do you have a solution?

Mr Green : One of my solutions is to make this a nomination process slightly harder. There is certainly evidence from the 2013 election that parties nominated in every state as part of the pool of preference harvesting. I am aware of at least one director of a small party who had only in interest—actually, Mr Askey, who I think was the head of the HEMP Party at the time in Queensland. His real interest was Queensland, but he wanted to do preference deals. He did not nominate in other states. His interest was Queensland, but they nominated in the other states to be part of the preference swapping which went cross-border. That has been ended by the new electoral system—

Mr MORTON: And could have been elected in WA—almost.

Senator LEYONHJELM: They got close.

Mr MORTON: With a Lismore-based candidate.

Mr Green : That is right—yes. That was in the re-election.

CHAIR: Yes, the re-run.

Senator LEYONHJELM: What exactly is the ill with that?

Mr Green : What is the ill with that?

Senator LEYONHJELM: Yes.

Mr Green : If an independent wants to run for the state, they have to prove they have at least the support of 100 nominators. A party does not. Fred Nile had his wife nominated for Tasmania. The Liberal Democrats nominated a man who was the mayor of Campbelltown. In fact, in 2013—

Senator LEYONHJELM: My question is: what is the ill with that?

CHAIR: Senator Leyonhjelm, I have allowed a bit of latitude during Mr Giles's time, but I will come to you next.

Senator LEYONHJELM: I will raise this in a minute.

Mr Green : My very simple answer is that it treats parties and independents differently in the nomination process. If you want to be a Tasmanian independent, you have to get Tasmanians to nominate you.

Mr GILES: I was going to ask you a leading question, Mr Green, but I do not think I need to anymore. And you can rest assured that at least one member of this committee shares your concerns on this issue. The last matter I wanted to raise with you is around question of, or your capacity to make an observation about, what barriers may prevent the AEC from closing the divergence gap in Victoria and New South Wales.

Mr Green : One of the issues is that New South Wales uses documents to justify enrolment. If the documents or the sources they use are not of the same quality in other states, then the AEC is allowing people to get on a roll in one state based on documents that it does not allow in another, so is not giving equal treatment to people all across the country. The New South Wales electoral roll makes it a lot more use of HSC details to nominate to register 18-year-olds. I think that is one of the documents the AEC is not very keen on using. There are issues. If you have someone nominated as a student for the HSC, you have to try and find their birth records, where they are born in this country. The New South Wales electoral commission does a lot of that sort of matching. The AEC has difficulty doing that sort of matching. One, they have to do some of this matching across state borders, which New South Wales does not do. If someone is born in New South Wales and they are doing the HSC, they can verify them. If they are not born in New South Wales, they have to use other records and they are not as thorough at doing that. If the AEC went down the path of, say, using school records, they would have to be checking births, deaths and marriages across the country; otherwise they may be unfairly treating school students in one state as opposed to another.

CHAIR: On this particular issue, I have just asked the secretary—we are going to pursue this further with the AEC in terms of getting a list from the AEC of what documents they and the states use so that we can compare that a bit further.

Mr GILES: Mr Green, I think what I gather from your evidence is that it is not simply a cultural question between the jurisdictions; there are significant, substantive differences in their approach to maintaining the roll that require—

CHAIR: Integrity issues.

Mr Green : New South Wales went down this roll process deliberately, because they were having severe difficulties with the enrolments that the AEC were doing. They were knocking people off the roll, and it was actually affecting redistribution process. There were parts of Sydney which were seeing enrolments falling when in fact the number of people eligible to be on the role was not falling, so that is why they pursued this process.

Mr GILES: Thank you very much—that is very helpful.

Mr MORTON: Mr Green, you mentioned that in New Zealand they start counting prepoll before voting closes. Is the issue there just a lack of resources? It is ridiculous that we have now become accustomed to waiting very long hours for prepoll votes to be counted. Should the AEC just be applying more resources to that count? Or should they do it before, as you suggested?

Mr Green : It depends on whether you view scrutineers as being part of the process or not.

Mr MORTON: Well, they should be.

Mr Green : One difficulties that the parties would have is in providing scrutineers to observe that account if you are actually doing on-the-day polling. In New Zealand, there is no on-the-day polling at all, so the parties can make people available. I think it is more of a scrutineering process.

Mr MORTON: That is something that I think we probably should consider as a committee. But couldn't the issue just be fixed by applying more resources to the prepoll count? Say, the AEC have a service delivery of trying to time the reporting of prepoll votes at the same time as average sized booths or something like that.

Mr Green : There are difficulties. The AEC has allotted considerable resources to running polling places and having staff counting at them. The people who are doing the counting of the prepoll votes are not otherwise working necessarily on the day, so there is an extra pool of people you would have to tap into. I think one of the difficulties is—the more votes you count does not mean just necessarily throwing more resources at it and having more and more tables. The more tables you have, the more chances for errors. So I do think there are some difficulties.

If you are taking 15,000 prepoll votes—I do not know this number precisely, but I seem to remember it at the previous election. The prepoll voting centre in Geelong covered Corio and Corangamite. It had huge numbers of prepoll votes for two different districts. You also have to reconcile people putting them in the wrong ballot box. There are lots of absent ballots taken prepoll which currently cannot be counted on the night because they have to be returned to the divisional returning officer. If you move down the path of electronic voting, all of those are available for counting. It has come up in Victoria as well. Victoria takes all prepoll votes as ordinary votes, even if they are not within district, and they get put in the same ballot box and are all counted afterwards. They cannot be counted on the night because you have multiple ballot papers from different districts in one ballot box. They are trying to work out a way around that, and electronic voting is a solution for that. The Commonwealth has avoided that by making a distinction between within and without districts, but you still end up with very large numbers of votes to be counted.

Mr MORTON: We are talking about electronic voting but we are skipping over some low-hanging fruit, which is actually causing perverse outcomes. Your submission is very thorough, but it is worth highlighting again the 144,000 House of Reps votes that are issued incorrectly because the Senate votes are included, because someone thinks they live in one electorate when they do not and they are issued with the wrong House of Reps ballot paper. This is an issue where I think that the AEC should be focusing their attention to make sure that, when they are issuing absentee votes, they are doing so for the right person and for the right electorate. I cannot see the rollout of this technology being difficult for them these days. How do you see it?

Mr Green : On page 27, they make the point that there were a few wrong House of Representatives ballot papers issued for states and divisions.

Mr MORTON: It was 150,000-odd—144,000 at least.

Mr Green : Actually, I shall take that back. Without reading that more precisely, that might be the 'small numbers' that was referred to by Mr Orr earlier. In terms of these declaration votes with the wrong House ballot paper, that appears to be a serious problem. In the example I showed of New South Wales, it is significantly bigger at Commonwealth elections than at state elections, where they use more roll mark-off. There should be more electronic roll mark-off or at least access to a roll.

I was doing some talks for the Australian consulate in Wellington, New Zealand earlier this year and they mentioned that the difficulty they had with rolls was that people were turning up to vote but they did not know what electorate they lived in. It would have been much easier for them if they had access to a roll and could say, 'You live here.' If you are not on the roll anywhere in New South Wales at a state election, you do not get given a ballot paper. If you push, you will be given a provisional, but at the Commonwealth level the biggest group of differences between these two was with provisional votes. People have turned up; they are not on the roll locally; they are given a provisional vote; and it turns out they are actually on the roll in a different district.

Mr MORTON: So, in the first instance, there should be an aspiration to have electronic roll marking for everyone where they are issued an absentee vote?

Mr Green : Yes. You have to phase it in. The AEC does attempt to have the voting experience the same in every polling place, but with the rollout of technology it is not going to be. If you are going to issue computers with the national roll on them, you are going to aim them at big voting centres, where you are likely to get lots of absents. There is not much point issuing one of these absent voting computers to Cootamundra, where they would take very few absent votes. You would clearly be aiming at bigger city centres, and that includes most of the issues to do with multiple marks and the like. It is the larger polling places you are directing this at. Of course, all the prepoll voting centres are where the maximum technology should be applied. You have a better chance of doing it there.

I would also say that the more electronic votes you get, the bigger sample of proper Senate ballot papers you get initially. In the ACT—I would not recommend this, but you might consider it—with those electronic votes we get, we get 20 per cent of the absents and about 25 including some electronic votes on the day. At the end of the evening, they issue a distribution of preferences, and every day for the week after the election they issue a new distribution of preferences based on their electronic ballot papers. That is not possible currently because all the AEC has is the 1 votes, and it is some time until the rest of the ballot papers are scanned. If you have more electronic ballot papers initially, you have a better chance of doing an interim distribution of preferences so people can follow what is happening with the Senate count. Of course, you may prefer not to do that.

Mr MORTON: One of the issues that have popped up in a number of submissions is some concern about the algorithms, arithmetic and processing of the Senate ballot papers—the relationship between the AEC and Fuji Xerox and the changes in how you can scrutineer now that the calculations are done by a computer in the background, not manually. You have probably seen some of those submissions raise some concerns about that. Putting those concerns aside, if we had to make a recommendation on how that system should be reviewed or verified—obviously I do not have the ability to do it—where should we go?

Mr Green : The National Audit Office is probably your first stop. The Senate system was introduced very quickly. With all this technology, you want to have some ability to ensure that things are accurate and being done correctly. I would recommend that there be a more thorough auditing process. Someone was trying to get access to those documents as a scrutineer in New South Wales and was denied access. There must be a distinction made between scrutineering and the checking of the process. Scrutineers ensure the ballot paper process is being done, but, when so many of these processes are no longer able to be seen by the scrutineer, I think you need to come up with a further process. Some form of audit committee, which includes people from outside of the AEC to look at this process, is well worthwhile. I mentioned in my submission the changing of the act to allow technology to be used for voting. It is very hard to put all that detail in the act. It has to be done by some form of regulation. If you do that, there needs to be some sort of formal process which approves—'Yes, I think you can use that technology. Yes, I think this is working efficiently and should be audited.'

CHAIR: We had evidence yesterday from Drs Teague and Culnane on this point. It was very instructive testimony. One of their recommendations was to have open source code so that it can be thoroughly tested. They took that opportunity—not in their closed system—and they found a way into the New South Wales electronic voting system and identified how it could be manipulated. They were talking about having not scrutineering but the code and they cited a number of countries that have open source code, such as Scandinavia, and that allows other people to scrutinise the code and almost run a 'hack-a-thon' to make sure of the validity of the coding and the algorithms that work behind it. Is that a step too far?

Mr Green : This is an argument that goes on in the community all the time: open source code versus proprietary systems. It is not just about voting; this occurs in vast areas of computer technology. The Electoral Commission has always been nervous about this sort of stuff because people wander in and then wonder why the code is written in a particular way and they are completely oblivious to what the act says. The code has been written because that is what the act says you should do. So people get very upset that the New South Wales Electoral Commission randomly samples ballot papers to conduct legislative council elections. The Constitution says they have to do that, which is why they do it, and automatically we will have differences in the count. It is a matter of trust. The difficulty the commissions face is money. Open source has the potential and it means you have to write your own system to a large extent, whereas there are many companies out there that have proprietary systems that they will sell you. It is their proprietary product and therefore it is not open source. If you go down that path, you have to have really good auditing processes to look at that code.

Senator LEYONHJELM: Mr Green, you referred several times to the speed of counting and the contrast between the federal election and other elections. Why does it matter? What benefit is there in having results known the night of the election or the day after the election—say, in the Orange by-election—compared to two days later in a federal election, as the case may be, or in fact in marginal electorates, when it is very close, as the last one was, even longer than that?

Mr Green : There is probably no reason except that, I suspect, a lot of politicians here would like to have an idea on election night as to whether they have been elected or not. People feel they would like to know what the result is. The AEC in its submission has again raised the issue of not counting Senate votes on the night, which was in the original bill for Senate reform earlier this year. Maybe they have good grounds to say that, but it does mean that nobody will have the faintest idea of what the result is in the Senate on the night—not even the closest inkling. I suspect there are some people who would think that is not a good idea. If you want a completely secure count, you slow down the information that is released. I do think that some of the time it takes to deal with declaration votes and the dragging out of the results is unacceptable, and there are other ways around that. Most of the states have moved to central processing of declaration votes, which means it can be done in a more standard fashion and an easier fashion.

Just as an example, with all the counting being conducted by divisional returning officers, there are some divisional returning officers who broke up their processing of postals and absences into batches. They would process 1,000 and then count the ballot papers afterwards. Some returning officers seem to take two days doing nothing but processing the declaration envelopes—there were no updates of votes. They are all procedures which are under the control of the divisional returning officer, and you can see that there are manual procedures which can be adopted which would make information available more quickly.

I think one of the difficulties people have, if you do not see results on the night, is the question of who is fiddling with the results. One of the most important things that was done in Zimbabwe to tighten up on corruption and ballot paper stuffing there was to change the laws—this was a process that was imposed from outside—so that in every polling place on the night they had to put a notice on the door showing the votes that had been counted in the polling place. So parties could see what had happened and then, when those figures were fiddled with by somebody centrally to corrupt the result, it was clear that somebody had altered the results—which were available in the polling place—centrally. I think it is important; it is why results are made available on the night—the question of conspiracy to change results is actually overcome, to some extent.

Senator IAN MACDONALD: Very true.

Senator LEYONHJELM: On the question of the Senate ballot paper, I share your concern that it is too big, but I am also mindful of the fact that democracy requires all voices to be heard, and stacking the decks against small parties is not something that I would be comfortable with at all. You have suggested nominations—

CHAIR: I do not think any of us would be, Senator Leyonhjelm.

Senator LEYONHJELM: I am very glad to hear that. Just in case you were all in any doubt, I made it all plain. I am interested in what options there might be for making the ballot paper smaller without compromising legitimate democracy. You have mentioned one, which is the nomination process. I disagree with your point about that one, but are there other ones?

Mr Green : Nomination fees?

Senator LEYONHJELM: Yes.

Mr Green : You could increase those. I am not keen on that sort of barrier necessarily becoming prohibitive. You could put fees on having access to a box above the line. I am not agreeable to that either. It comes down to: making it tougher to register a party; tougher to nominate for administrative reasons like nominators; or a financial thing making it harder to get on the ballot paper.

You could also do what is done in South Australia. Currently, with the randomisation of the columns, there is great excitement about someone who can draw the first column on the ballot paper. South Australia have changed their rules on the allocation of columns on the ballot paper. Registered parties are the first ones that appear, and there is a random draw for that. In South Australia, they have provisions so that you can create a name for your column. You can become 'independent ban duck shooting', for instance. The groups that make use of that provision go after the parties, and then independents go in the last column. They can have individual columns in South Australia. So they have changed the way that process occurs.

I think some countries have rules so that parties that stood at previous elections get put first. There are rules like that, but certainly the competition to do well on the ballot draw is viewed as important. The Labor Party did much better on the ballot draws at this election than they did at the previous election all around the country. The coalition did worse in several states. That is just a matter of the random draw. But there is no reason why you have to have the random draw done in the way it is.

Senator LEYONHJELM: Let us discuss party registration for a second, because I happen to think that there is scope there for raising the bar a little bit without compromising democracy. If we take your earlier point regarding nominations for an independent, I think you are implying that there is something unjust about the fact that the nomination process for a party is different to what it is for an independent. The other side of the argument is that being a political party, once you have cleared the hurdle of registering a party, confers certain benefits—which an independent should not enjoy, because they have not cleared that hurdle. If we are to approach it from that direction—from the party registration point of view—what suggestions do you have there?

Mr Green : Just to backtrack to the other point: Tasmania at state elections have registered parties and, under their procedures, you must have 100 members nominated, and they are published in the Government Gazette, with their names and addresses, to get a registration. If you want to nominate as an Independent, you need 10 nominators to appear on the ballot paper. If you can get 100 nominators from the division, you can have your own column, and Andrew Wilkie used that at the 2010 state election, when he had his own column because he had extra nominators. In the ACT, the only people who can have their own column are registered parties. Independents have to go into the 'ungrouped' column. There is no alternative way around it. I do think we should tighten up the regulations, but I do think the two types of candidates are treated differently. A registered party can just nominate the candidate centrally, under the signature of the returning officer, whereas, in Tasmania, or in any state, an Independent has to have 100 nominators.

Senator LEYONHJELM: And I am asking: what is the ill in that? In the ABC, they have a vast amount of talent in their Melbourne office, so they send them all around the countryside. They are a bunch of dolts in the Sydney office. So you use your talent. I am speaking metaphorically there, not referring to anyone in particular. The point is that a political party—and mine is a good example, but I think it is true of every small political party—have their talent weighted in one area, but they obviously want their talent to be elected, irrespective of geography. What is the problem with that?

Mr Green : I do not have any problem. I disagree with making people be on the roll in the constituency they are contesting—their state or their electorate. Neville Wran, when he was Premier of New South Wales, was elected for the seat of Bass Hill in Western Sydney. He lived in very affluent Darling Point, and he bought a second-hand Holden to visit his electorate, because he thought the E-Type Jag was not a good idea! John Howard was the member for Bennelong, and for 30 years he did not live in the electorate because someone moved the boundaries on him. I do not think there is anything wrong with the voters of the electorate having the option to vote for somebody who does not live in the electorate. I do not see any problem with that, but, until the introduction of registered parties, you had to have nominators in your district. To simplify the process of nomination, they allowed registered parties to offer lists up, but Independents still had to have nominators from their local area. The new Senate system has changed it, but certainly in 2013 the fact that most microparties nominated in every state was part of a complex deal on preferences by some of them.

Senator LEYONHJELM: In 2013 that was true because of the group voting ticket system.

Mr Green : Yes.

Senator LEYONHJELM: In 2016 it was not.

Mr Green : Back to your question about the registration of parties: I do think you can toughen up the registration of parties. Most of the states have much tougher processes of verifying that people are on the roll and members of the party. I think there are administrative ways you can toughen up the way the AEC does that checking. You can also increase the number of members. That was the original recommendation of JSCEM after the 2013 election. It was walked away from in the bill that eventually appeared. I think that should be looked at again, and I have suggested that in my submission.

Mr BUCHHOLZ: I am interested in your opinion on the effects that four-year terms would have federally and what the pros and cons have been in other jurisdictions, maybe from a state perspective.

Mr Green : You would need a referendum of course. The issues that come up are: if you have got four-year terms, do you want fixed or variable? When four-year terms were put up as a referendum in 1988, Peter Reith, who led much of the 'no' case, put forward two arguments against that four-year term. One was that the Senate terms were reduced to four years as well—they got rid of the staggering of the terms. Getting rid of the staggering of the terms was done in both Western Australia and Victoria when they introduced proportional representation. So, if you are extending the term, should there be consideration of ending the staggered terms at the same time? The second thing that was argued was that the four-year term was not fixed, and that was an argument against it. I think there are two things to consider. If you go down the path of four-year terms and ending the staggering, or even if you keep the staggering, you change the mechanism of double dissolutions. At that point, should you reconsider how double dissolutions currently work? I think if you just do four-year terms, all you are doing is extending the current system and adding a year. But do you want eight-year Senate terms? If you go for getting rid of the staggered terms, are there other changes you should make to the electoral system and to the double dissolution power?

Mr DICK: Mr Green, on your recommendations 3.4 and 3.5, which everyone seems interested in, about the Senate registration, you mentioned before the 100-signature eligibility. Is that the minimum? Would you consider going down lower than that?

Mr Green : The rules currently say that you need 100 to nominate, and if you want a group, then the other candidates on the group also need their own unique numbers. I think that is a starting point. Most of the parties have got significant party memberships. The parties that are registered under the Tasmanian electoral act certainly have 100 people they can tap into with nominators. Parties that do not have any Tasmanian representation—or it could be any other state of course—would struggle.

Mr DICK: Your earlier remarks included residential requirements for representation. What about representing a state? Would you consider it reasonable that someone who wants to represent a state should live in that state? I note that in your evidence earlier today you said that Mrs Nile was a candidate living in New South Wales—I assume, on the role—but running in Tasmania.

Mr Green : I am less concerned about that. The case that immediately comes to mind was that of Barnaby Joyce, who was a Queensland senator but then stood for a New South Wales seat. But he grew up in the electorate. Again, this argument about whether someone is on the role in an area is a difficulty. Someone might be from New South Wales and might have spent all their life in the New South Wales Labor Party, but then goes to work for a Queensland minister. They might be living in Brisbane but still have all their connections from New South Wales, and if they wanted to nominate as New South Wales Labor senator, I do not see a reason to stop that. But the tradition we have always had is that the nominators have to be on the role.

In Australia, we have never had a requirement that someone live in a district, and that goes back to the 19th century, when most members did not live in their district. They were elected as representatives and were expected to be in the city all the time, working for their local interests. I would concentrate on nominators rather than candidates' addresses.

Mr DICK: In terms of the recent ACT election, at the pre-poll centres, I would like to know a little bit more about the process of electronic voting. So, a voter would go in and be marked off the normal way, but how did it then work? Were there machines set up for the voters to cast their ballots?

Mr Green : When marked off the role, they were given a small card with a unique barcode. The barcode is not tied back to the enrolment. It is important that the vote and the enrolment be separated so that the ballot is still secret. They are given a barcode which will initiate the vote at the voting screen. The barcode is swiped, and that starts the process of voting.

Mr DICK: This is probably a strange question, but if you were to change your mind, what is the point of no return? If on election day you get the ballot paper and you have spoilt it or for some reason, like you have marked it wrong and you want to change it, you can be issued with another one. What is the point of no return? Is it just the click of a button?

Mr Green : It is the point where you have marked your ballot paper. If you have accepted and are happy with the vote, that is the vote. If you want an overseas trip, you can go to Estonia, where people can change their vote through the election campaign. Nearly all their votes are taken electronically, and if you decided, halfway through the election campaign, that you did not like your first vote, you can go in and change it.

Some American states allow people to change their vote if they voted pre-poll, and their original vote is rejected, but they are not electronic votes. To do that you have to be able to identify the first vote. That is one of the difficulties. The more secret the ballot is, the harder it is to have that sort of process.

There are peculiarities of electronic voting, and one came up with Senate voting and was an issue in the New South Wales Legislative Council election. In the ACT, when you vote—and this is not an issue which comes up with paper ballots—every ballot paper has the order of columns the same. When you vote electronically, because the ballot paper is wider than the screen, the ACT computer voting drops you on a random column. It randomly allocates you to a column. In New South Wales, where they had the iVote, they ran into a problem where it did not do that. It automatically highlighted the first columns on the ballot paper. And there was the problem that the electronic votes had a much higher incidence of voting for the first four columns. There are technical things like that which need to be considered in the planning of this, but there are examples of it.

Senator RHIANNON: You have spoken about the size of the ballot paper, Mr Green, and it is understandably troubling because it makes more difficult for the voters. We have only had the Senate voting reform for one so far. Do you anticipate that there will be greater understanding that it is harder for some parties to get elected because the backroom deals cannot be done, which would result in a reduction? In that context, could you comment on what happened after New South Wales introduced upper house voting reform? Was it virtually the same and was there a shakeout in the number of parties?

Mr Green : The first thing is that I do think the next time the Senate election is held, there will be a change in the number of parties that nominate. This time there was a double dissolution, which lowered the quota. As far as I have seen, some people were given advice that the more parties that stood the more divided the vote would be and, therefore, somebody would get elected from a really low vote, but that turned out not to be the case at all. There were enough preferences in the system to advantage all the parties that started the count with a significant vote, so the idea that the quota would be so low and there would be so many exhausted votes proved not to be true. I would expect there to be fewer parties nominate next time. There may be more joint tickets by parties. I dread to use the phrase 'joint ticket' in this way, but the HEMP Party and the Sex Party did run joint tickets in most states at the election.

In New South Wales it has certainly caused—the number of columns went from 83 to 16 in the first election after the changes, but those changes also came with a significant tightening in party registration rules. Party registration rules in New South Wales are much tougher than the Commonwealth: you need 750 members, you need to maintain a regular roll, you need to pay a $2,000 deposit and you must be registered 12 months before the election. I think the 12 months before the election rule is a bad one, although there may be an argument for setting aside a minimum period—that there is a set period of the three months that it will take to get registration through. Maybe that will make people be more organised.

Senator LEYONHJELM: Just to clarify that: to get registered in the first place in New South Wales, it is much worse than what you have just described. You not only have to have 750 people, but the Electoral Commission contacts each of them, and all of those 750 have to respond in the affirmative that they are members of the party. That is by far the biggest hurdle.

Mr Green : To register a party in South Australia, all people who claim to be members must have signed a document saying they are, and those documents must be presented to the Electoral Commission. The AEC has, by far, the loosest testing: they write to a sample, and a certain number of that sample must return. So you can see that even without increasing the numbers drastically—I would say 500 to 1,000 at least—you can still toughen up the regulation by making parties be a bit more organised in their membership. If they are not organised enough to have their membership and get their membership to sign forms to send back, then they are not going to be very organised to actually run an election campaign is my view.

Senator LEYONHJELM: Except that most parties these days recruit members online. So rather than having forms, you would need to make that more consistent with current technology.

Mr Green : You raise a valid point about those parties that do raise membership online, and the checking processes—

Senator LEYONHJELM: All parties do it.

Senator RHIANNON: My questions have been asked, which is excellent, but I did want to return to the issue of fixed term elections, or a fixed date for elections, and whether you see there are advantages in that. I think you were in the room when we were questioning the AEC. We spoke about accessibility, and it seemed as though there could be an advantage there. I think you spoke about the fact that there could be cost advantages with regard to vote counting. Do you support fixed term elections? What are the advantages that you see if we move to that?

Mr Green : Fixed terms are a massive advantage for electoral commissions. Electoral commissions will always say yes to fixed terms; they are a huge advantage. I think it was 1991 when New South Wales introduced its fixed term legislation for the 1995 election, so we have had quite a time of experience now—two decades of it. This is a political science view of this: one of the weaknesses we have had is that fixed terms deny a chance for a popular—

Senator RHIANNON: Was the 'we' in that New South Wales?

Mr Green : Sorry?

Senator RHIANNON: You just said 'we'. When you said 'we', who were you referring to?

Mr Green : Australia. Australia has had two decades of experience of fixed terms around the country. It is always a question of what do we mean by 'we'. What we have seen in Australia is that fixed terms deny the ability of a popular government to rush off to the polls to get a majority. What they have not dealt with well is weak or poor governments, and what can be done with them. An example of that was the Napthine government in Victoria, which, under all previous systems, probably would have tried to go to an early election because it was in no position to continue governing. But it could not call an election, and the opposition would not put it out of its misery, so we had government limping on for 12 months.

Similar situations have arisen in Germany, with the end of the Helmut Schmidt government in the 1970s, when one of the small parties switched sides and they chose to engineer a vote of no confidence to bring on the election. Or at the end of the Gerhard Schroder Social Democratic government in Germany, where the government could no longer govern and an agreement was made to bring the election forward. There has never been enough goodwill between the parties in Australia to put parliaments out of their misery, in my experience, so what we have done is ensure that governments do not take advantage of early elections to take advantage of their popularity. We have not come up with a mechanism to easily end governments that really have reached the end of their life span.

Senator RHIANNON: Are you saying you need that mechanism to be there in conjunction with any move to fixed terms? Is that what you are saying?

Mr Green : There was a mechanism to bring on an early election in Victoria. They could have engineered an early election, but there was no goodwill to do so.

Senator IAN MACDONALD: On page 6 of your submission, under the heading of 'Electronic Roll Marking'—I should know this, but just to clarify—are you talking about every polling booth having a computer either online or with a USB port with the whole of Australia on it?

Mr Green : There are various ways you can do this. One is that you can use it to mark off the roll. Another is you can use it just simply as a reference, so the absentee desk would have reference to the whole roll to ensure that people are given the correct ballot papers. There are several ways you can have access to the roll. One is just for checking. One is for mark off. The mark off becomes more complex.

Senator IAN MACDONALD: But for either way, each polling office would have a computer that was either connected online or with the USB port with the whole roll on it where they would mark off everybody. How would it work?

Mr Green : To deal with the number of wrong ballot papers issued, as I mentioned in my submission, you could simply do that with a reference source of the roll so that every polling place would have access, somewhere, to the whole roll. It would not be used to mark people off, but it would verify enrolment. When someone is trying to cast an absent vote, it would ensure they get given the correct ballot paper. That is one aspect. The second aspect is mark off. Again, you can do the mark off locally, which just replaces the paper roll, or you can start to wire up polling places so that the roll can be marked centrally and you can actually deal with multiple voters, for instance. You would not necessarily do that in every polling place. I think they did that in Queensland at the state election, but only in Brisbane where there were vast concentrations. If you talk about multiple voting in an outback electorate, of course you are not going to get much multiple voting, because nobody is going to drive 200 kilometres just to vote under their own name again. You could do it. It takes a bit of logistical work and, of course, cost.

Senator IAN MACDONALD: But it is not voting under your name. The problem with multiple voting is voting under somebody else's name because there is no checking.

Mr Green : A lot of the multiple mark offs are incorrect mark offs. So if you have incorrect mark offs and you are using an electronic roll, and if somebody turns up at another polling place and they are already marked off, it may have been a clerical error, so you have to give them the opportunity to cast a declaration vote.

Senator IAN MACDONALD: I am not worried about the clerical errors. In the case of Herbert, we hear from the AEC that there were 48 multiple voting issues that were so serious they referred them to the AFP—we do not know why yet. Of course, 48 votes would mean a difference in that electorate and, bar one, could have meant the change of government. It is a very serious issue. I am interested in marking off the roll more for the issue of multiple voting. Would that, if done properly, make it impossible to have multiple voting?

Mr Green : It would make it tougher—I am not saying impossible—for someone trying to multiple vote in the same name. But, as I said, you create a new issue. There were 180,000 multiple mark offs—I think that was the figure from the Electoral Commission—and a vast majority of those were clerical errors. So all those clerical errors would generate the need to have a declaration vote for those people, because they have already—

Senator IAN MACDONALD: But at least you have identified the issues then and there, and you know who has—

Mr Green : I think they reported one person voted 11 times or something. I am of the view that those people—

Senator IAN MACDONALD: What? In 2016?

Mr Green : I think it was said in an estimates hearing. An estimates hearing had some numbers on multiple voting.

Senator IAN MACDONALD: I had not caught up with that. Thank you for that.

Mr Green : If someone is doing that then it is very difficult to prosecute. Unless they admit it, what is the evidence that they did it?

Senator IAN MACDONALD: I am not interested in prosecution so much as the fact that you can change the government of Australia with, if not 11, say 22 votes going one way or the other.

Mr Green : I would refer back to, say, the Mundingburra case. Most of the error was not caused by multiple voting. There were some small examples of multiple voting which they identified—nearly all of them were clerical errors—but it was actually the ballot papers that did not get out to people that was the bigger problem. The instance of multiple voting is a concern but, on my numbers in my submission or in my blog post, there were a couple of hundred incorrect House ballot papers for Herbert. There were voters for Herbert who had been given the ballot papers for the wrong electorate. The number of incorrect ballot papers was much larger than the number of double votes.

Senator IAN MACDONALD: I can confirm that; I watched every vote. And that again is a concern, not because of Herbert itself but because with two Herberts you change the government of Australia, and that is scary.

Mr Green : The difference between the Electoral Commission and business is that business accepts a degree of error because the cost of diminishing the error is diminishing returns. When it comes to elections, it is not a business model; you have to spend more and more to minimise the errors.

Senator IAN MACDONALD: That is right.

CHAIR: Thank you very much, Mr Green, for your testimony and for your written submission. We were very much looking forward to welcoming you to the hearing. I think it is safe to say you have challenged us on a number of areas and you have given us a lot more work to do in the things we proceed with. On behalf of the committee, as we move forward and as we review some of these issues, we will be inviting you back to address these issues in more detail.

Mr Green : I would be quite happy to do that.

CHAIR: Did you take anything on notice to come back us on?

Mr Green : I am not sure.

CHAIR: In case you did, the due date is Friday, 2 December. As usual, you will be sent a copy of the transcript so that you can request corrections to transcription errors.