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Joint Standing Committee on Electoral Matters
08/02/2012

CARPAY, Mr Pablo, First Assistant Commissioner, Australian Electoral Commission

GATELY, Mr Andrew, Assistant Commissioner, Roll Management, Australian Electoral Commission

KILLESTEYN, Mr Ed, Electoral Commissioner, Australian Electoral Commission

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

ROGERS, Mr Thomas Joseph, Deputy Commissioner, Australian Electoral Commission

Committee met at 09 :30

CHAIR ( Mr Melham ): I declare open this public hearing of the Joint Standing Committee on Electoral Matters inquiry into the Electoral and Referendum Amendment (Maintaining Address) Bill 2011. This bill proposes that the Australian Electoral Commission be able to directly update an elector's enrolled address following the receipt and analysis of reliable and current data sources from outside the AEC. Today the committee will hear from the electoral commissioner and the AEC representatives. The evidence given today will be recorded by Hansard and it will be covered by parliamentary privilege. I remind members of the media who may be present at the hearing of the need to fairly and accurately report the proceedings of the committee.

I now welcome representatives of the Australian Electoral Commission. The committee has received a submission from you—if you wish to make any opening remarks please feel free to do so, Mr Killesteyn.

Mr Killesteyn : One of the fundamental norms of our political and electoral system is the universal right of persons who meet the prescribed qualifications for the franchise, such as citizenship and age, to exercise that right in an equal and non-discriminatory way. From this flows the policy imperative of enabling the universal exercise of legitimate voting rights at election time. In this respect, the electoral roll is simply a tool or a list which enables polling officials to determine at election time, without further fuss, whether a person should be given a vote. The most effective means of managing the electoral roll has and will change with time, circumstance and need.

Electoral management bodies around the globe generally assess the quality of the electoral roll by reference to a number of common criteria. These include: that an individual included on the roll meets the legislative qualifications for entitlement to enrolment; that an individual is enrolled accurately at the address for which they are entitled; that the information provided by an individual or an organisation is processed correctly and completely on the roll, and that the address is correctly and completely described, classified and aligned; that the electoral roll is secure from unauthorised access and tampering; and that the electoral roll is complete, in that all individuals who are entitled to enrolment are enrolled. Together these criteria provide a means of assessing the overall integrity of the roll. It is in respect of the last of these criteria, completeness, that the Commonwealth electoral roll is demonstrably at its greatest risk. That risk is shared by the Commonwealth, the states and territories, and local government because the roll produced by the AEC is used at all levels of government for many elections.

The AEC estimates that approximately 1.5 million entitled Australian citizens are not enrolled. The evidence suggests that as each year passes by the number of unenrolled citizens will continue to increase. Significantly, many of these are people who were enrolled in the past; indeed, the AEC estimates that over 600,000 of the 1.5 million unenrolled have been enrolled before and could have voted.

In part, this reflects the imbalance of the existing provisions which allow the AEC to commence action to remove a person from the roll on the basis of reliable third-party data, which indicates they no longer reside at their enrolled address but does not allow the AEC to update the same person's details to an address for which we have information that they do reside at.

The processes for keeping the electoral roll as complete as possible have evolved over time. Roll management programs continue to evolve to reflect the demographics of Australia and technological opportunities available to electoral management bodies. In the last century, effective management of the roll relied on foot soldiers, literally. Armies of door-knockers weaved their way through the streets and suburbs of Australian electorates reminding people of their obligations and dropping off and collecting enrolment forms. This strategy was appropriate at a time when electorate populations were relatively stable, when people expected and were receptive to business being conducted door-to-door, in electorates which were largely self-contained and could be serviced by a single divisional office.

For the last decade, roll management practices have been primarily based on what is known as the Continuous Roll Update program or CRU. Using opportunities provided by technology to match reliable third-party data with our own electoral roll, targeted letters are sent to people who the AEC determines are eligible to be on the roll and who are not, or those who are on the roll but not at their latest known address. These letters invite the recipient to complete and return an enrolment form. In recent times, between two and three million letters per annum have been dispatched to existing and would-be electors as part of the CRU.

The CRU process continues to evolve. Where once CRU letters invited the elector to return to the AEC a completed paper form showing updated address details, the elector is now directed to the AEC website where the transaction can be completed online. In addition, both the Australian Taxation Office and Australia Post now act in partnership with the AEC, providing more timely reminders to electors that address details need to be updated online if, in the course of and at the same time as transacting electronic business with those agencies, a change of residential address is notified. These are quick and cost-effective mechanisms for address update with clear benefits to the elector by making it easier to update his or her address.

Driven by even greater demographic shifts, characterised by high rates of mobility, low response rates to CRU letters and increasing costs, and built on a decade of experience with data matching, the AEC's view is that we should further evolve our administrative strategies aimed at keeping the electoral roll as complete as possible. In this respect, the AEC is of the view that direct update of elector addresses using reliable third-party information is not only a next logical step in the evolution of electoral roll administrative practices but also consistent with growing expectations of many in the community for seamless use of data across government agencies.

In conclusion, with direct address update, the AEC could implement a blended and ultimately more effective program of strategies to keep the electoral roll as complete as possible. Direct update would be complemented by existing CRU activity, targeted fieldwork, education programs and local initiatives pursued by staff in state and divisional offices. Thank you, Chair.

Mrs BRONWYN BISHOP: I am interested in your opening remarks. I noted all the things that you noted as being important and agreed with most of them, except that you still place a greater emphasis on putting people onto the roll rather than managing the integrity of the roll. Immediately you begin this process—and I note that the commission, the Labor Party and the Greens are all in lock-step—and use sources that are compiled for purposes other than the roll, you corrupt that roll. There are plenty of examples around where there are errors in rolls which you are likely to use. You say you are going to absorb the cost of this, that it is not going to cost any more. What is your estimate of the cost and what are you offsetting it against?

Mr Killesteyn : I think the essential contention we are making, Mrs Bishop, is that the activity for direct address update is very similar indeed to the current activity that we have been undertaking for the last decade on the Continuous Roll Update program. The processes are much the same. We take data from third-party agencies. We take that data and match it against our existing electoral roll using computer systems. We make a determination based on that third-party data in comparison with the electoral roll as to whether a person is at their latest known address. We then take action; we test it. In this case or in the current CRU activity, the letter goes out to the individual. In a direct address update, we would still send a letter to the person but, where there is no response, we would take action to update the address.

Mrs BRONWYN BISHOP: In other words, you are no longer testing whether the lists were good or bad. You would assume that they are accurate?

Mr Killesteyn : In answer to your direct question, the costs are relatively the same under the CRU activity as they are under direct update activity.

Mrs BRONWYN BISHOP: Does that mean that you will be sending out fewer letters? You say that you send two to three million letters per annum. That is a big gap. Is it two or is it three?

Mr Killesteyn : It varies, according to the year and the timing. During a year in which there is an election, there is probably slightly less CRU letters because of the time period that we are focused on the election. In other years, for example now, we would be beefing up our CRU activities and sending out more letters. That is why I used the range of two to three million per annum.

Mrs BRONWYN BISHOP: How many did you send out in the last batch, in the last period?

Mr Killesteyn : I have not got an answer to that question at this point. We can take it on notice.

Mrs BRONWYN BISHOP: We know it was two to three million, but we do not know how many we sent out last time? We will find that out, will we?

Mr Carpay : Mrs Bishop, they get mailed out on a fairly regular basis, on a monthly or a bimonthly basis.

Mrs BRONWYN BISHOP: But let us take a given period of time.

Mr Carpay : If you want the latest one, then we can—

Mrs BRONWYN BISHOP: How many did we send out before the last election?

Mr Carpay : It was 4½ million.

Mrs BRONWYN BISHOP: So it was not two to three million; it is now 4½ million?

Mr Gately : I think the traditional average is two to three million.

Mrs BRONWYN BISHOP: Pardon?

Mr Gately : It averages two to three million.

Mrs BRONWYN BISHOP: Over what period?

Mr Gately : Over the years.

Mrs BRONWYN BISHOP: How many years?

Mr Gately : For 2010-11, we sent out 1.6 million letters.

Mrs BRONWYN BISHOP: That is very low.

Mr Gately : The number is affected by several months hiatus with the federal election.

Mrs BRONWYN BISHOP: That is in line with the fact that your computer systems actually processed fewer changes than for the 1990 election. So everything has slowed down a bit?

Mr Killesteyn : That is not correct, Mrs Bishop.

Mrs BRONWYN BISHOP: We took that evidence last time.

Mr Killesteyn : Yes, I know. But I corrected that evidence in a subsequent response that I think I provided. The number of transactions that we conducted for the 2010 election, during the close of rolls period, was the greatest that it has ever been in comparison to any other year. I think we completed 564,000 transactions completed, which eclipsed any other close of rolls period in any other election.

Mrs BRONWYN BISHOP: Going back to the question I asked before: the way the system works now, you get your data lists. We will go specifically to those in a moment. Then you send out letters to test how good that list is. When those letters are returned to you, because you have tested it, you have sent a letter to that person and the letter is returned to you, you know that that is not the correct address. You are going to remove the testing process and you are going to assume that the lists are now accurate. You are going to automatically change and you are going to work on the basis that if you send out a letter after the event and nobody complains, you will have changed it anyway. You are not going to test the list; you are going to test the willingness of the elector to send back the information?

Mr Killesteyn : I think the point that underlines the CRU activity and that will also underline the proposed activity under a direct address update model is that the third-party data is not accepted at face value. We take the information, we confirm firstly that the identity of the elector is the same. We examine the address against our address register, to ensure that it is a properly enrollable address. Only when we are satisfied as to the veracity of the information do we then, according to the model in the proposed legislation, issue a letter to the elector advising of the intention to update the address. The third-party data—I am happy to indicate to you now—is data we get from Centrelink, from Australia Post or roads and transport authorities, will be subjected to veracity checks prior to the AEC taking any further action.

Mrs BRONWYN BISHOP: What is the veracity test?

Mr Killesteyn : They are exactly the same pieces of data that we have been using for CRU activity.

Mrs BRONWYN BISHOP: To remove the test?

Mr Killesteyn : No we have not.

Mrs BRONWYN BISHOP: Yes, you have.

Mr Killesteyn : The letter goes to the individual indicating—

Mrs BRONWYN BISHOP: But the outcome is different. At the present time, you test—

CHAIR: Hang, on Bronwyn. Ask the question and let him answer it. You will have time to come back at him.

Mr Killesteyn : Under the direct update model, the letter goes to the individual and they have an opportunity, in accordance with the legislation, to respond to the AEC within 28 days indicating whether or not the address that we are proposing to use should be used.

Senator RYAN: There is a slight logical flaw here though, and I am happy to be corrected, Mr Killesteyn. I have some more questions later. If your presumption after checking all the data is that someone is no longer at an address, and therefore they are not entitled to be enrolled at that address, and you mail that address repeatedly and there is no response and they are removed from the roll under the objection rules. That is a profoundly different outcome to undertaking the same process and, when there is no response, enrolling them anyway.

Mrs BRONWYN BISHOP: That is exactly the point I was making.

Senator RYAN: That is the point that Mrs Bishop was trying to make.

Mr Killesteyn : I understand that point and I would put to you that the concern that you have should be an equal concern in relation to the current processes whereby we remove somebody from the roll.

Senator RYAN: Mr Killesteyn, I would respectfully say firstly that I do not think it is your role to advise me on what my concerns should be about the roll. We have had this discussion now over three inquiries and I have made clear, and I do not think that it is an unreasonable view, that there are a good number of people who believe that individual action from the elector to enrol themselves is not an unreasonable burden. I do not think that you could characterise what I am saying as: when you send letters to an address and there is no response, that can be prima facie case that they are not actually at that address. What you are proposing is sending letters to an address and when there is no response, enrolling them. That is a profoundly different outcome for the same activity.

CHAIR: You have made your statement, and Mr Killesteyn will be given a full opportunity to respond.

Mr Killesteyn : The evidence is already there in terms of the research that we have done, Senator, that people generally do not respond to the CRU letters. Our response rate at the moment is about 20 per cent. A lot of the research that we have done suggests that the motivation for people to get on the roll or indeed update their electoral roll details is based on notions that government data can be used by other agencies to update their address. There is even some research which suggests that electors believe that that is what is going on right now.

Senator RYAN: I understand all that, Mr Killesteyn, but you put to me that I am undervaluing enrolment as opposed to removal. I will put to you my case as to why I do not think they are. Given the events that lead up to both under this proposal, I do not think that one undervalues the other. However, I put to you that you are undervaluing the requirement in the act at the moment to say that people are required to enrol to vote. You by this process, and what you have just said, basically says: 'Well, because people are not doing that and they are not acting appropriately, we're going to go around that.' If you say I am undervaluing one part of the act or an objective, I put to you that you are actually undervaluing the law as it stands.

Mr Killesteyn : Forgive me, Senator, I am not implying that you are undervaluing anything. I am simply saying that, when you compare the current process whereby we remove an elector from the electoral roll using one set of data, it is equally as concerning as what you are suggesting about people who are put on the roll based on exactly the same data. The processes are essentially the same. What I am suggesting here at the moment is that, in terms of the greatest risk to the electoral roll is that there are 1.5 million people not on the roll, of which 600,000 were people who were on the roll at some time or another. This is a process which gives greatest assurance that those people can be maintained on the roll and maintain their franchise. That is of concern to me and that is what has been concerning the AEC.

Mrs BRONWYN BISHOP: Here is my concern. What you are doing is virtually reversing the onus of proof. At the moment you are given a list. You use it to compare addresses to find a target audience. You also use us, members of parliament. Because you send us an updated monthly list of new enrolled electors and we as members write to those electors and letters come back saying they are not at that address. We then send those letters to you so that you can change the roll or you can write to those people with a view to finding out or removing them from the roll if they are not there. We are all part of that process. We are testing your lists. You are reversing the process. You are not testing the list anymore. You are changing it and then sending out a letter and saying, 'If you don't like it, let us know.' There you are making it the responsibility of the elector to respond to you. You have reversed the process. My concern is that we already know that the lists you are using are defective.

If you tell me that the number of people who are unenrolled is growing then, to my way of thinking, that means that the Electoral Commission is not doing its job properly or well enough. You are trying to change the system to make less work for the commission. I find that totally unacceptable. I agree entirely with my colleague Senator Ryan that the whole act is predicated on the basis that electors have a responsibility to enrol and to enrol properly on the roll. You want to take that away.

CHAIR: Mr Killesteyn will answer, then I have got a question for Mr Killesteyn.

Mr Killesteyn : Just to make one point of clarification. If a letter is returned to sender—that is, is returned to the Australian Electoral Commission as 'return to sender' mail, we will not update the address. Even if the 'return to sender' mail that you as a member of parliament send out came back, we would not be taking any action to directly update the person's address.

Mrs BRONWYN BISHOP: That creates your base of people to target to find out.

Mr Killesteyn : Yes, but I am clarifying a point that I think you made about 'return to sender' mail. That is not a basis for direct address update. It would be excluded from any action.

Mrs BRONWYN BISHOP: But it is the basis of further action by you; is that not correct?

Mr Killesteyn : That would then fall into another category of work, which might be another letter to the individual.

Mrs BRONWYN BISHOP: Correct.

Mr Killesteyn : It might be targeted field work. It may be some other process to try to discover where that person is.

Mrs BRONWYN BISHOP: Exactly.

Mr Killesteyn : It would not be an update of the address given by the—

Mrs BRONWYN BISHOP: Correct. In other words, you are further testing the accuracy. All of that will go, because you will just change it.

Mr Killesteyn : No, no. This is 'return to sender' mail. This is a letter that is returned to the Australian Electoral Commission unopened. There will be no action taken to directly—

Mrs BRONWYN BISHOP: That is part of the 4.5 million letters that you send out?

Mr Killesteyn : Yes.

Mrs BRONWYN BISHOP: How many of those 4.5 million letters in that particular year were 'return to sender'?

Mr Gately : Mrs Bishop, typically, we see about five per cent 'return to sender' rate.

Mrs BRONWYN BISHOP: Does that mean that the remaining people are then correctly at their correct address?

Mr Gately : Under the current regime?

Mrs BRONWYN BISHOP: Yes.

Mr Gately : We send those letters aiming to update those individuals' enrolment details on the basis of them responding to our letters.

Mrs BRONWYN BISHOP: At what point do you make a decision to remove them from the roll?

Mr Gately : If we have firm evidence to suggest that they are not at that address.

Mrs BRONWYN BISHOP: What is the firm evidence?

Mr Gately : For the most part, 'return to sender' mail is one of those triggers. Whether it is from an MP or whether it is a senator's mail.

Mrs BRONWYN BISHOP: But the commissioner just said, 'No, that does not result in removing a person from the roll.' He just said that.

Mr Killesteyn : I said that it would not result in an address being updated to the address that we have used. It would then move into another parcel of work to determine whether the person should remain on the roll at all.

Mrs BRONWYN BISHOP: So I go back to my first point. You are testing the accuracy of the information you have received. When you have got a 'return to sender' letter, you know that is not correct.

Mr Killesteyn : That is exactly right, because it is a 'return to sender' letter.

Mrs BRONWYN BISHOP: Correct.

Mr Killesteyn : It is one piece of mail that we get from electors—

Mrs BRONWYN BISHOP: Because you have tested it.

Mr Killesteyn : We have tested one group of letters that come back to us unopened. That is all we have tested.

Mrs BRONWYN BISHOP: That is right. Then you have got the other processes. Then you remove people from the roll. But you are going to reverse that process and you are automatically going to change to the address you have got on it. We already have evidence—

Mr Killesteyn : Not for 'return to sender' mail. Not for 'return to sender' mail.

Mrs BRONWYN BISHOP: No. Your new process. Your new process that you want, which will be less work for you—

Mr Killesteyn : Under the act—

Mrs BRONWYN BISHOP: is designed, if this legislation goes through, and would be a precursor to the next step you want of automatic enrolment and would mean that, once you send out your letter to the new address you have taken off the same sort of databases you are using now, that you know are inaccurate, you are going to change that straightaway and you are going to send out a letter and say, 'We've changed your address; is this right?'

Mr Killesteyn : There is no less work for us. The process is exactly the same. A letter is—

CHAIR: It is not helpful to have interjections. If the transcript is to mean anything, you ask the questions and give him an opportunity to fully answer. I will allow you to then test his evidence, but the crisscross halfway in between leads to a mishmash of the transcript. I ask everyone to bear that in mind. Everyone will get a full opportunity to ask their questions and have the witnesses respond. That way we will have meaningful evidence. Mr Killesteyn, is there anything else you want to respond to with regard to Mrs Bishop's suggestions?

Mr Killesteyn : Other than to suggest or indicate that there is no reduction in work for the AEC. This is about effectiveness of the tools that we have, to try to ensure that the number of people who are falling off the roll is minimised.

Mr SOMLYAY: I am a bit confused about the process of notifying members of new enrolments and changes of address within their electorates. New enrolments, which obviously—

Mr Killesteyn : Under the current processes initiated by the electorate, the current Electoral and Referendum Amendment (Maintaining Address) Bill has no impact at all on new enrolments. So, when a person applies for enrolment, we go through the normal process of determining their identity and checking the veracity of their eligibility and so forth. Once that is confirmed and a decision is made by a delegated officer of the Australian Electoral Commission, they are then placed on the roll. As part of the process of providing new lists to members of parliament, they are just included on that new list.

Mr SOMLYAY: There are a proportion of people who are not at that address, because we get return mail. Do you get the return mail before you advise us of these people being enrolled or afterwards?

Mr Killesteyn : They are probably independent processes. We would notify you of new enrollees. As members of parliament, you would be contacting those individuals for your own reasons. We would potentially contact them if it became known to us from third party data that they had changed an address. So they are quite independent processes. But if you send us a list of electors that are return to sender mail—

Mr SOMLYAY: Which we do.

Mr Killesteyn : then they would fall into a category of work where we would start to investigate what the issues are; we would possible write to them or try to track them down, find another address for them or whatever. At some point, if there is no response to a number of letters, we would reach the conclusion that they may be objected off the roll.

Mrs BRONWYN BISHOP: How long does that take?

Mr Killesteyn : Our objective is to complete objection action within a three-month period.

CHAIR: I just want to cut to the chase. The bill we are talking about at the moment—and it rises out of what you told Mr Somlyay—involves people who are already on the roll, not new enrollees.

Mr Killesteyn : That is exactly right.

CHAIR: So these are people who currently have an entitlement to vote at the address that is on the roll. So the process we are talking about is an alternative to taking away their entitlement to vote in terms of removing them from the roll, which is the current option, and having another option which updates their address.

Mr Killesteyn : That is correct.

CHAIR: So their entitlement is no more than what it currently is: they have an existing right to vote at a particular address and, if you process them at a new address, that existing right remains but for the new address.

Mr Killesteyn : Their entitlement has been determined in the original process of putting them on the roll.

CHAIR: So you are dealing with real people but you are dealing with the question in terms of their address. You are not dealing with a phantom group of people who are just being thrown up as new enrollees, or who might be non-existent in terms of—

Mr Killesteyn : That is correct and was part of my opening statement: that is the 600,000 people that we estimate have been on the roll before at some stage and, for a range of reasons, have eventually dropped off.

CHAIR: Is it your experience or the commission's experience that there are a number of people who have not responded in the past whose entitlements have been taken off them?

Mr Killesteyn : Yes. In fact, if you examine the number of people who turn up at an election and cast a provisional vote because their names are not on the roll, of which there are some 200,000, they are clearly potentially part of the group that have fallen off the roll because, at some stage, they did not respond to an AEC letter.

Mrs BRONWYN BISHOP: They still get to vote.

Mr Killesteyn : No, they do not. They get to lodge a provisional vote, but if they are not on the roll then they have no vote at all.

Mrs BRONWYN BISHOP: Correct, because they have not complied with the act.

CHAIR: Then let me just go to the situation. I will come back straight to you after me, Bronwyn, and then I will go to Senator Rhiannon. You talked about the population in the last century being relatively stable. My understanding of recent censuses, is that they show that the population is really on the move. Do you have any statistics to show the increased mobility of the population over time in general? I know, for instance, in my seat of Banks in 1986 we were the most stable seat in the country. In the last census, I think we were bumped out to eight. The movement is occurring with demographic change.

Mr Gately : Chair, I do not have the stats at a divisional level. But certainly the statistics that we use from the Australian Bureau of Statistics indicate that somewhere in the vicinity of 16.5 per cent of the population move at least once per year. That is at least once per year.

Mrs BRONWYN BISHOP: What was the percentage?

Mr Gately : 16.5 per cent.

CHAIR: Once a year.

Mr Gately : Yes. Now, that varies a little bit from state to state as well. Some states are somewhat more mobile than others. For example, Queensland and the Northern Territory are more mobile.

CHAIR: I would be interested if you could provide the committee with whatever historical analysis you can, on a state by state basis if possible.

Mr Gately : Will do.

Mrs BRONWYN BISHOP: I now go to the actual rolls that you use, the source that you use. The new bill uses the term 'reliable and current data source'. What does that mean to you—because the bill does not define it?

Mr Killesteyn : The data sources that we currently have access to and which we would propose that we continue to use under the direct update model is data from Centrelink, from Australia Post and the data from roads and traffic authorities, which is collected into a single database nationally, which is called NEVDIS, which stands for—

Mr Gately : National Exchange of Vehicle and Driver Information System.

Mrs BRONWYN BISHOP: Under this legislation you would be free to use any other roll you like.

Mr Killesteyn : The legislation does not specify any other database.

Mrs BRONWYN BISHOP: Correct, because you can make a decision.

Mr Killesteyn : But at this point it would be our intention, given the experience and the knowledge that we have with those databases as well as the comprehensiveness of those databases, to continue to use those that are available to us.

Mrs BRONWYN BISHOP: But under the act, you can choose any database you like.

Mr Killesteyn : The act gives me discretion to extend the databases. Yes.

Mrs BRONWYN BISHOP: I believe that to be totally inappropriate, but that is another question. Let us look at two of those sources you use: Centrelink and RTA. Supposing a person has got one address for Centrelink and another address for their drivers licence. Which one do you pick?

Mr Killesteyn : We have rules to try and ascertain which is the most likely address that the person is at. We would look at the date of the data—which is the most recent address that is provided to us. If we reach a situation where we cannot be satisfied about the address that a person uses, they would be excluded from the direct update process and they would fall into our normal CRU activity, where we would be writing to the individual and asking them to clarify which address they should be enrolled at.

Mrs BRONWYN BISHOP: But this says you should automatically do it.

Mr Killesteyn : It does not say—

Mrs BRONWYN BISHOP: Let us take some of the—

Mr Killesteyn : Let me make this clear, Mrs Bishop—

Mrs BRONWYN BISHOP: Let me put this proposition—

CHAIR: Could you comment on it being automatic.

Mr Killesteyn : There is no automaticity in this process. All of the data is subjected to verification. The elector is given an opportunity to verify and it is only at that point that we take action to update the address.

Mrs BRONWYN BISHOP: I want to deal with that word 'update'. It is a politically loaded word. The word should be 'changed', because that is what you do. You change the address. Whether that is an update or a downgrade or anything else, that is a different meaning all together. This is a change in address.

CHAIR: It is better than 'remove'.

Mrs BRONWYN BISHOP: Not necessarily, at all. If the person does not comply with the Electoral Act and in fact notify you in the proper ways that are required—in other words exercise a responsibility in order to exercise their vote—and this is the only free country in the world where it is compulsory—

Mr Killesteyn : That is not correct either, Mrs Bishop.

Mrs BRONWYN BISHOP: Which one would you name?

Mr Killesteyn : There are other countries.

Mrs BRONWYN BISHOP: Compulsory voting.

Mr Killesteyn : Compulsory voting, yes. Including Brazil.

Mrs BRONWYN BISHOP: Well, I will be glad to be with them.

Mr Killesteyn : I am happy to give you a list of other countries that have compulsory voting.

Mrs BRONWYN BISHOP: I would include Brazil. The Soviet Union used to have it too.

CHAIR: You have not done too badly out of compulsory voting—the conservatives. You even brought it in in 1925.

Senator RYAN: Nobody is perfect.

CHAIR: Don't start on that.

Mrs BRONWYN BISHOP: Nobody is perfect, and we were not there then.

CHAIR: Thirteen years—you didn't move to get rid of it. Even Minchin could not get it up. Sorry, Bronwyn. I should not have interrupted.

Mrs BRONWYN BISHOP: Let us go back to the point of the obligation under the act for a person to update their own material. We say, philosophically, we believe that it is important: it is the elector who has the obligation, not the bureaucracy to make assumptions. If a person fails to update their details, what is the penalty under the act?

Mr Killesteyn : Let me firstly deal with this philosophical issue. I appreciate and respect that there will be different philosophical approaches to this, but the notion that the state can step in to enforce an individual's obligation is quite common. It applies, for instance, to the tax regime where individuals have an obligation to pay tax and the state steps in to force tax instalment deductions on a regular basis. The state steps in to apply superannuation deductions. The state steps in to require people to update their motor registry details. There are all sorts of examples where the state acts to enforce an obligation that exists on an individual citizen. As far as the penalty is concerned, there is no indication that those penalties will change. An obligation—

Mrs BRONWYN BISHOP: What is the penalty?

Mr Killesteyn : For non-enrolment?

Mrs BRONWYN BISHOP: No, for failing to update your details.

Mr Killesteyn : That is a non-enrolment.

Mr Pirani : It remains one penalty unit.

Mrs BRONWYN BISHOP: What is the penalty?

Mr Pirani : One penalty unit is $110. That is the existing penalty that is in subsection 101(6). If you look at the bill, item 2 in schedule 2 prevents us from doing proceedings—

Mrs BRONWYN BISHOP: Correct, I know that. How many prosecutions have you made for failure to enrol?

Mr Pirani : That is a matter I would have to take up with the DPP.

Mrs BRONWYN BISHOP: Have you made any?

Mr Pirani : I have not referred any since I have been here in 2007.

Mrs BRONWYN BISHOP: So in five years you have not recommended one prosecution?

Mr Pirani : I have not referred any matter to the AFP for investigation relating to the update of enrolment since 2007. That is correct.

Mrs BRONWYN BISHOP: It is your obligation to compile the brief to send to the DPP. You utilise the AFP—that is your choice—to do the investigation.

Mr Pirani : No. The agreement that we have had and the arrangements that we have had with the AFP that have continued in force are that we refer a matter to the AFP to do the investigation, because of the various rules under the Crimes Acts in relation to speaking to potential witnesses, et cetera. We are not resourced to undertake that activity. We refer the matter to the AFP. The AFP, if they have sufficient evidence for a prima facie case, will then refer a brief to DPP.

Mrs BRONWYN BISHOP: In five years 600,000 people have fallen off the roll and you have not had one prosecution?

Mr Pirani : That is correct, Mrs Bishop.

Mrs BRONWYN BISHOP: Yes, I repeat: I think the reason that the list is growing is that the AEC does not do its job.

CHAIR: You do not want compulsory voting but you will prosecute them if they do not enrol.

Mrs BRONWYN BISHOP: But there is one other point in my response.

CHAIR: This is your last point, then I will come back to you.

Mrs BRONWYN BISHOP: Yes. That is this: I am glad you raised the tax office. To try and make the entitlement to vote equal with obligations that we might have under different legislation is to me appalling. That is why your and my philosophy will be different. I would just, on that question of tax, note that it was found in 1998-99 that there were 3.2 million more tax file numbers than people in Australia in the last census, 185,000 potential duplicate tax records for individuals and, in a sample batch, 62 per cent of deceased clients of the tax office were not recorded as deceased. That is how accurate the material that you are proposing to use can be.

Mr Killesteyn : I am not proposing to use tax records.

Mrs BRONWYN BISHOP: At the moment, but you can change your mind under this bill.

Mr Killesteyn : But I am not proposing to use them.

Mrs BRONWYN BISHOP: You might not be there for very long.

CHAIR: Okay, you have made your point.

Senator RHIANNON: Mr Chair, I dispute the opening comments of Mrs Bronwyn Bishop when she made the comments about the Greens and others represented at this table, that we are in lock step. I approach this independently, as I believe everybody does. I think it was quite insulting. Commissioner, when you are examining these issues about the rolls and how they should be managed, with regard to this particular situation, did you look at privacy implications? If so, what were your findings on that, please?

Mr Killesteyn : Yes, we did. We have been in consultation with the Privacy Commissioner over this particular bill. The Privacy Commissioner has examined all of the processes that we are currently proposing to use for the direct address update. The Privacy Commissioner has not raised any particular issues that should be of concern, primarily because processes that we are suggesting be adopted for direct address update are exactly the same as those processes that we currently use for the continuous roll update program.

Senator RHIANNON: Thank you.

Mr Killesteyn : Might I just add a point about the Privacy Commission. I think this is important information which would be useful for the committee's consideration. I think we have outlined it in our submission, but it bears repeating. The Privacy Commission does do research about the attitudes that individuals have about the use of data. They have done research in 2001, 2004 and 2007 in the research program they call 'Community Attitudes to Privacy'. In the latest research, in 2007, the Privacy Commissioner reported:

Support for Government departments being able to cross reference or share information has increased from 71% in 2004 to 80%.

The report also cites the following:

There has been a slight increase, to 36%, of respondents who have decided not to deal with a business or charity because of concerns over the way that organisation might handle their personal information. The proportion that has avoided Government departments on the same grounds (12%) is lower than when measured in 2004 (16%).

That is my point: that there is a growing community expectation that data is shared across government agencies.

Senator RHIANNON: Thank you, that is a very interesting study. Very useful. I was also interested in other jurisdictions in terms of adopting similar measures to what has been proposed in this bill. Could you share any information you have about that, please?

Mr Killesteyn : The closest jurisdictions that we have that have already moved down the path of direct address update are the New South Wales Electoral Commission and the Victorian Electoral Commission, where the respective governments have passed legislation. Beyond that, there are examples in other countries, including Canada, which is probably our closest neighbour as far as comparable systems are concerned. They have had a system of direct address update for at least a decade. Then you move beyond that, into other electoral commissions who use all sorts of other civil registers and so forth to compile an electoral roll at the time of election—that is, using other sources of data other than a directly built one, as we do here in Australia.

Senator RHIANNON: If this bill failed to go through, that would mean that there would be more inconsistencies between the federal roll and the New South Wales and the Victorian rolls? Is that the case?

Mr Killesteyn : I believe that is the case. Divergence of the roll is an issue that I have expressed concern about already. We understand from plans that by 2015 the New South Wales Electoral Commission, under its program of direct enrolment and direct update, will have effected some two million elector records in New South Wales. That averages to something like 41,000 people per electorate. It is quite conceivable that at a federal election, there would be large numbers of people who believe they are enrolled for federal purposes, but are not. So the divergence of the roll will increase. And that is just New South Wales. Victoria has to date had a smaller program of people that they are directly updating or directly enrolling, but my expectation would be that they, like New South Wales, will continue to grow the numbers.

Senator RHIANNON: So that divergence is something for us to consider the implications of. I think it is also interesting to note that the Coalition in NSW did support that legislation.

Mr SOMLYAY: I would like to know the impact on our role of what has happened in Queensland. You have got local government elections which were due on 31 March and the rolls have closed, but the government has decided to defer that election till the end of April.

Mr Killesteyn : That is correct.

Mr SOMLYAY: The state election is on 24 March and the roll has not closed. How is that going to impact on—

Mr Killesteyn : This bill will not have an impact because we will not have had an opportunity to implement the bill if it has been passed prior to that time. We have some work to do.

Mr SOMLYAY: Do you use the local government roll to update the Commonwealth roll if there is an election held beforehand?

Mr Killesteyn : No. It is the other way, Mr Somlyay. We actually provide the electoral roll for local government elections. So the roll that had closed on 31 January for local government elections is a roll that we provided to the Queensland Electoral Commission. We did all the work on the claim forms and updates that came in prior to 31 January. The roll was closed for that and the Queensland Electoral Commission has that roll now. We will also do the roll close on behalf of the Queensland Electoral Commission for the Queensland state election. The writ has not been issued so I cannot tell you when the roll close will be, but we will do that. We will do all the work associated with that and then give it to the Queensland Electoral Commission to enable them to conduct the election.

CHAIR: But their rolls are frozen at those dates for those electorates?

Mr Killesteyn : Absolutely frozen.

CHAIR: You continue to update the Queensland roll so in due course that will all come back on stream, won't it? The divergence issues are not an issue in Queensland compared to the Victorian use of—

Mr Killesteyn : Potentially there is small divergence issue between the roll that is provided to the Queensland Electoral Commission for the local government election and the roll that is provided to the Queensland Electoral Commission for the state election because in that intervening period of some six or eight weeks, we will continue to update the roll.

CHAIR: But eventually that will flow on?

Mr Killesteyn : Eventually that will flow on, yes.

Senator RYAN: Canada, while it has this enrolment process, does not have compulsory voting or attendance, does it?

Mr Killesteyn : No, it does not.

Senator RYAN: Is it fair to say that we do not have a direct comparison with countries that do this with compulsory attendance?

Mr Killesteyn : No, we do not. I think that is a fair comment.

Senator RYAN: In terms of roll divergence we have discussed previously that we have different views. What concerns me here is whether you would come to this committee and provide a recommendation to adopt any electoral law passed by a state parliament that might lead to roll divergence? Let me put to you a couple of scenarios. You are putting to us this scenario that roll divergence is a problem because of the changes adopted in NSW and Victoria. Let us say NSW or Victoria moved away from a citizenship entitlement to vote to a residency entitlement to vote, as other countries have. That would lead to massive roll divergence between Victoria and the Commonwealth, for example. Would you sit here and propose therefore that the Commonwealth had to replicate the legislation and that entitlement to voting simply to remove the roll divergence?

Mr Killesteyn : Let me make a couple of points about that. The issue of direct update of the electoral roll has been discussed now for more than a decade. This is not a new issue. It was first raised in the public hearing of the joint standing committee inquiry into the 1998 federal election. In October 2000, the AEC outlined in its submission to the JSCEM inquiry into the integrity of the electoral roll that proposals for direct address update were under consideration by the Electoral Council of Australia. In its 2002 order report, the ANAO identified direct update as a mechanism capable of increasing the efficiency of the CRU process. The matter was then first raised by the joint standing committee in recommendation 6 of its report—

Senator RYAN: To save time—

Mr Killesteyn : But what I am putting to you is that this is a mechanism for dealing with a policy issue. This is not a policy issue per se. I would make a distinction in your question about what is a fundamental policy change versus simply a mechanism for delivering the policy that already exists. So my proposition is that, in the same way that we do habitation reviews, CRU activities and field activities, this is another way of delivering the policy. If it is a substantive policy—

Senator RYAN: What is that policy?

Mr Killesteyn : The policy is compulsory enrolment.

Senator RYAN: Mr Killesteyn, I understand your views. They are well stated. But it is not entirely the role of your side of the table on these issues to decide what is policy versus merely a means of implementation. I do not think that you could reasonably say to those of us who have a genuine concern about the practice—as well as the underpinnings of this, where we are removing the onus upon the individual to actually comply with the Electoral Act—that that is not a policy issue.

Mr Killesteyn : As I have said, my view here is that this is a mechanism of delivering a policy which was established back in 1911, in the same way that the CRU activity is and in the same way that the person who knocks on a door and confronts an elector and says, 'Are you enrolled or are you not enrolled?' is.

Senator RYAN: All of that involves checking. What you are doing actually involves an action with respect to the roll. Regarding adding someone to it, I will not cover that ground again. But the point about divergence is one I want to get to here. You have a big concern about divergence. I can understand; that makes sense. You have more people turning up, presumably in certain areas, who think they are enrolled because they voted at the state elections last year and the year before in Victoria and New South Wales. But where does that logic stop? For example, another idea that has been proposed for many years is Labor's proposal to remove the right of UK citizens on the roll before 1984 to vote.

CHAIR: It is not Labor's proposal, it is my proposal.

Senator RYAN: Sorry, I thought it was the ALP's.

CHAIR: I asked it as an individual.

Senator RYAN: My apologies, in that case.

CHAIR: The Labor Party did not think it up.

Senator RYAN: My apologies.

CHAIR: Even Alan Jones supported it.

Senator RYAN: I thought it was a government majority recommendation.

CHAIR: It was a single-member report.

Senator RYAN: All right. That proposal has been around for a while, too. It is not the first time that I have read it, and I have been here for only four and a half years.

CHAIR: It is the correct proposal.

Senator RYAN: Without getting into the debate on it, if one of the states did that, that would also lead to substantial roll divergence. Would you sit here and say that that divergence should be addressed by the Commonwealth matching the state electoral activity?

Mr Killesteyn : I am not going to deal in hypotheticals here, Senator. Here is an example where a number of states have already taken action. The action is focused on what I think is a reasonable objective of ensuring the integrity of the rolls from completeness. Here is an example of where the Commonwealth electoral roll will fall behind in completeness. I think I have an appropriate role and an appropriate responsibility to bring that issue to the consideration of the committee and to make recommendations, which is my role as an electoral commissioner.

Senator RYAN: I am just going to the divergence issue, Mr Killesteyn. It is fair to say then that not all roll divergence is something that should be matched by both jurisdictions. Your argument is that in this case it is okay because of the other objectives you have outlined. But it would not be fair to say that roll divergence is driven by a 16-year-old voting, for example, or changes to state electoral acts. You would not automatically sit here and advocate those.

Mr Killesteyn : As I have always said, Senator. I think there is an issue for the AEC and for the community generally in what is happening to the electoral roll. The number of people who are not on the roll, I think, is a serious issue.

Senator RYAN: I do not think that is a reflection on you as much as on the people on this side of the table.

Mr Killesteyn : That may be the case, but given my role and given the role that I have to bring these issues to the committee's consideration and to make recommendations about what can be done about it, that is what I am doing.

Senator RYAN: There is one last issue I would like to pursue, maybe for Mr Pirani. My concern here is that we have had lots of discussions about the pursuit or lack of enrolment related offences. Does this not make it harder to pursue offences? Not that we have had a lot, but does this not make it harder? Can someone not plead effectively that there is no evidence that they actually enrolled at a wrong address if they did, for example?

Let us say that the data source was wrong or someone had their drivers licence in a city or a country area because they got cheaper licence fees or it made insurance easier. You use that data, because they might have two residences, to update them. But you subsequently find out, because they get busted for some other reason like a speed camera or whatever, that it is actually not the place in which they are entitled to be enrolled. Does not the fact that there is actually no paper or web trail from an individual elector updating their enrolment or failing to update their enrolment make it even harder for you to prove that an offence has been committed? The elector can say, 'I did not do anything.' Not responding to mail is probably not going to meet a legal test of actually committing electoral fraud.

Mr Pirani : It adds an additional step; I clearly have to acknowledge that. But I do not see it as a further barrier, given the current problems that we have in relation to pursuing criminal offences.

CHAIR: But why is that? A year ago it was a strict liability offence. Of course it is a further barrier. There is no intent; there is no mens rea. When you fill out a fraudulent enrolment form, you can go to someone's mind. How do you go to someone's mind here if what Senator Ryan says is correct?

Senator RYAN: I was not going to use Latin, Daryl, but—

CHAIR: I am sorry, but the counterpoint is: in a month of Sundays the commission is not going to devote its resources to this sort of prosecution. This is not what the commission is looking at.

Senator RYAN: Can I respond. I was looking at an example like what happened in Queensland with the Shepherdson inquiry. I am not saying it is happening, but let us say another scandal like that is uncovered. There is no paper trail based on where these people have enrolled. They might have just said, 'The way to get enrolled in that address is to get my library card and register my tax file number and my driver's licence at someone's home.' I might be committing a myriad of other offences as well, but at the same time I want to know whether or not this makes what is not a culture of prosecution, for whatever reasons and whatever legal hurdles currently exist, even harder. I put it to you that it probably does.

Mr Killesteyn : Senator, could I just point you to one part of our submission, which is paragraph 2.33, where we looked at this issue of prosecutions for non-enrolment and examined the experience of the Victorian Electoral Commission. They have had exactly the same rationale as you are suggesting—that greater prosecution action might create an environment of more compliance.

CHAIR: 2.33?

Mr Killesteyn : Yes, 2.33 down to 2.34 and 2.35. You see in the quotation there in the middle of 2.34 that the Victorian Electoral Commission concludes that the process is expensive and ties up resources at the VEC. It subsequently makes a further recommendation that non-enrolment should become an infringable offence. I think that sets the scene that, while prosecution is a tool, it is a very difficult tool and it is a very expensive tool.

Senator RYAN: I understand that.

Mr Killesteyn : And probably not as effective.

Senator RYAN: I am not going to that. I am simply going to—

Mr Killesteyn : But there is some suggestion that we are failing because we are not prosecuting.

Senator RYAN: I was not meaning to re-open that. That is why I tried to qualify what I said, which was, 'because of legal and other hurdles as well.' We can put why the AEC has not done that until now to one side. My question is: in the future, if we have a Shepherdson inquiry like event where there is no question that there was an element of breaking electoral law, does not the lack of a paper trail and does not the lack of individual elector activity increase the burden upon the electoral authorities to prove that, for example, a fraud took place? Daryl used the legal terminology.

Mr Pirani : Senator, it would add an additional evidential step that we would need to overcome.

Senator RYAN: So it makes it harder?

Mr Pirani : For a prosecution under our act, but if it is in relation to false information that has been provided to the other agency—

Senator RYAN: That is their issue.

Mr Pirani : That is correct.

Senator RYAN: That is their issue. But for you, in plain language, it makes it harder.

Mr Pirani : It adds an additional step.

CHAIR: Unless you change the nature of the offence to a strict liability offence or an infringement type thing where—

Mr Pirani : An infringement process that would remove it from the courts.

CHAIR: Yes.

Mr Pirani : Again, that is part of an ongoing issue that has been raised.

Senator RYAN: Take it further. I am not looking at just the innocent example. I am looking at the attempted fraud, whether it is for internal party purposes or whatever. Those procedures are not just going to get an on-the-spot fine. There will always remain an electoral fraud offence.

Mr Pirani : Sorry, Senator. That is not an electoral fraud offence.

Senator RYAN: No.

Mr Pirani : The offence we are talking about here is divisions 136 and 137 of the Criminal Code.

Senator RYAN: Let me correct what I said then. I would hope that there always remains a higher offence than one that is just an on-the-spot fine. That is probably the better way to put it. What I want to know is, when you go down the path of not just issuing the fine to the people who may not have enrolled or who have done something inappropriate but down the path of actually having to prosecute because you think the offence was worthy of a court event rather than an infringeable offence, this makes that prosecution harder. It makes your burden of evidence harder to gather, does it not?

Mr Pirani : It is an additional step, Senator.

Mr Killesteyn : I would simply add that, given the other issues that we have pointed to in relation to taking prosecution action, I am not sure whether that is an argument that works against this. We acknowledge the additional step, but prosecution action is not under the current regime a particularly effective tool.

Mrs BRONWYN BISHOP: Supposing we did introduce a spot fine for failure to comply. Would you support that?

Mr Killesteyn : I have already been on evidence, Mrs Bishop, of recommending that that be considered. I would support it.

Mrs BRONWYN BISHOP: I want to go back to the process. Supposing you have decided, because of your checking with your material, that Mrs Bloggs has actually moved from her previous address. Under this legislation, you would write to the new address and say, 'We have changed you', because you are satisfied that she has moved.

Mr Killesteyn : We would not say that we have changed it; we would write to the individual and say, 'We have information which leads us to believe that you are at this address. You have 28 days to advise us whether that is not the case.' If there were no response, then we would change the address at that point.

Mrs BRONWYN BISHOP: But you have got to write to the old address?

Mr Killesteyn : No—as we do not do under the current CRU process.

Mrs BRONWYN BISHOP: So, Mrs Bloggs in fact has not moved from her address. She is one of those people who have got a second house. Her principal place of residence is X, but on the list that you have obtained her address is shown as Y, and she is not going to get your letter. She is not going to reply to you in 28 days and you are going to change her address. She is going to rock up on election day and be told that she is not on the roll because her other address is in a different electorate. She has no right to be on the roll of the different electorate, but somebody who perhaps knew that it had been changed could rock up in her name in what could be a marginal electorate and vote in her name. She would be denied her vote, and a fraudulent vote would be counted in a marginal electorate. How are you going to overcome that difficultly?

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

Mrs BRONWYN BISHOP: RTA has a simple answer.

Mr Killesteyn : if they were not giving those agencies an indication that that is their residence.

Mrs BRONWYN BISHOP: Let me put it to you this way. Mrs Bloggs lives in the electorate. Perhaps it is a city electorate and she does not really need a car, so she does not have one there. Mrs Bloggs has a property which is in a different electorate—marginal—and she needs a car there. So she takes out her licence in the country area, where it can be cheaper anyway. She then has her RTA. She will show up with that address—but she does not own a car in the city, so there is no reason why she should have that address with the RTA—and you are going to write to her at the RTA address. Not the one that she personally has put in as her address with you.

Mr Killesteyn : There are lots of hypotheticals here, but if the person had registered her car at another address then one would presume that she is going to that address at some time and would pick up the mail.

Mrs BRONWYN BISHOP: But it is not her principal place of residence and that is not where she is entitled to vote.

Mr Killesteyn : At that point, she would be able to tell us that that is not her principal place of residence and write back and say—

Mrs BRONWYN BISHOP: Not really. She only goes there every now and again and the letter has gone in and something has happened to the mail and the term ceases.

Mr Killesteyn : As I said, we can find all these little hypotheticals. The presumption that the person has indicated to Centrelink or to Australia Post—

Mrs BRONWYN BISHOP: We are not dealing with Centrelink here.

Mr Killesteyn : It is generally around a change of address notification or Roads and Traffic Authority; if they have another address it is prima facie information that that is the address they wish to use.

Mrs BRONWYN BISHOP: But you are dealing with hypotheticals too and you cannot say that I am dealing in hypotheticals and then deal in your own. I have given you a concrete example where you would be writing to her at an address where she is very rarely at. And she may never see that letter at all.

Mr Carpay : She may have a postal address. If she has a postal address rather than a residential address, we will write there.

Mrs BRONWYN BISHOP: It can be a post box and because she is not there very often, it disappears out of the box.

Mrs BRONWYN BISHOP: So your answer to my question is: that's too bad?

Mr Killesteyn : No. What I am telling you is that there is a prima facie reason for the person providing a new address to one of those three agencies.

Mrs BRONWYN BISHOP: She has a prima facie need to give it to you.

Mr Killesteyn : If she does not provide it to Centrelink because she is not a Centrelink client or she does not provide it to any other organisation then we will not know about it.

Mrs BRONWYN BISHOP: I am sorry, my example was: she lives in a city electorate where she does not need a car, she has a property in the country—a marginal seat—where she does need a car, and that is where her RTA address is, where that car is. She does not go there very often, but if she gets a letter—

CHAIR: She is not entitled to enrol there under the act, Bronwyn.

Mrs BRONWYN BISHOP: Precisely.

CHAIR: So, if she falsely enrols then you can prosecute her—

Mrs BRONWYN BISHOP: She has enrolled at her principal place of residence, as she is entitled to do. But the records that you would be checking would change her address to where she is not entitled to be and someone could vote in her name.

Mr Killesteyn : I do not know how they would vote in her name, because you are making another link.

Mrs BRONWYN BISHOP: They might also get access to the RTA material.

CHAIR: Are you looking at protocols with some of these agencies in relation to their particular forms that might include another line or two in relation to electoral enrolment, which could further take this issue that Senator Ryan, for instance, raised about you losing the capacity to prosecute them because of intent? I am thinking of another line that does specifically refer to enrolment that these agencies would follow up and then get locked in?

Mr Killesteyn : Not at this stage, Chair. It is certainly something that we can take on board. The thing I would point to is that we are complying with the Commonwealth data matching guidelines. That is a public statement that we will issue as we have done in the past, which will indicate the data sources that we are using, the processes that we subject that data to, and the outcomes from it. That will all be public information. As well, of course, we are complying with the privacy legislation principles.

CHAIR: It seems to me that down the track if this does go through that is something that might overcome some of the objections from my colleagues here in relation to—

Mrs BRONWYN BISHOP: No, it will not.

CHAIR: Well, if it does not, it is certainly goes to the question of where the voter wants their enrolment to be. I am not suggesting a form of words, I am just putting it on the table.

Mrs BRONWYN BISHOP: I want to go back to my example of Mrs Bloggs, whose permanent residency is in the inner city electorate. Mrs Bloggs rocks up to vote on election day only to find that you have changed her address. She has not seen the letter that you sent because she does not go to the other address very often, and she casts a provisional vote—or she asks for a provisional vote. Will she be granted one?

Mr Killesteyn : Yes, she would.

Mrs BRONWYN BISHOP: How will it be determined whether it is valid or not?

Mr Killesteyn : The divisional returning officer would determine whether the address she should be enrolled at is a valid address and subject to that assessment would admit the vote.

Mrs BRONWYN BISHOP: How will he do that?

Mr Killesteyn : Under the current arrangements, he would examine the electoral roll. He, potentially, could make contact with the elector to determine what address she should be at. The current legislation provides for that ability for the divisional returning officer to satisfy himself or herself about the address at which—

Mrs BRONWYN BISHOP: And under the amending legislation what would be the decision?

Mr Killesteyn : It does not change. There is no change to the legislation about admitting votes to the count.

Mrs BRONWYN BISHOP: No. The question I am asking is that you will have changed her address on the electoral roll, so when the returning officer goes to look at the electoral roll he will see that that is her address and he will say, 'That one's out.'

Mr Killesteyn : I would have to check with Mr Pirani, but there are provisions currently in the act which provide for the address to be corrected.

Mrs BRONWYN BISHOP: Mr Pirani, could you elucidate?

Mr Pirani : There is provision in section 103 where, if the address was changed as a result of our mistake, we are able to put the person on at that new address. But there is a recommendation from JSCEM that government is yet to respond to in relation to reinstating people on the roll for the address based on—

Mrs BRONWYN BISHOP: I am sorry; that is not part of this legislation.

Mr Pirani : No, it is not.

Mrs BRONWYN BISHOP: So do not go there. Tell me what is going to happen. She is on the roll. Would you judge that you had made a mistake?

Mr Pirani : At the present time, the rules are set out in schedule 3 to the act that, to the extent that the address does not match on the outside of the declaration envelope, under paragraph 10, if it is an election of the House of Representatives and the Senate at the same time, the House of Representatives ballot paper, if it is in a different division, is rejected, but if it is in the same state the Senate ballot paper goes through. That is paragraph 10 and paragraph 19 in schedule 3 to the act.

Mrs BRONWYN BISHOP: So, if her property were in a different state, she would lose the vote?

Mr Pirani : She would lose her vote.

CHAIR: In the old days, if it was not in the subdivision of a division you would lose your vote. But you were around when they had subdivisions in terms of official capacity.

Mrs BRONWYN BISHOP: That was changed by Bob Hawke in 1983.

CHAIR: Yes, but you were around as an official.

Mr Pirani : Can I just correct that? It is section 105 not section 103, which is the alteration of the rolls—

CHAIR: So the principle has always been there.

Mr Pirani : and the first paragraph there says:

(1) In addition to other powers of alteration conferred by this Act, the Electoral Commissioner may alter any Roll by:

      (a) correcting any mistake or omission in the particulars of the enrolment of an elector;

But that does not change the certified approved list of voters, which is what is being used at the time that you are doing a provisional vote under section 235.

Mrs BRONWYN BISHOP: But by you, the commissioner, changing the address, a person can lose their vote.

Mr Pirani : In the hypothetical circumstances you have raised, yes, if they have moved interstate and we have a different address from another state.

Mrs BRONWYN BISHOP: Correct. Do we have any statistics on the number of people who own more than one house and whether they are in different states?

Mr Killesteyn : No, Senator, we do not.

Mrs BRONWYN BISHOP: I will say it again: I am no longer in the Senate.

Mr Killesteyn : My apologies, Mrs Bishop.

Mrs BRONWYN BISHOP: Okay.

CHAIR: Everyone makes the same mistake. You made an impact in the Senate. There are saving provisions, and I think that is what you are saying. I think that in terms of the provisional votes, if you have scrutineered in relation to them, a lot of the evidence that is used is in relation to what is actually filled out on the form, and then there is the comparison. But the law used to be different as to how far you could go back to determine someone's address, Bronwyn. It has actually become harsher, and that is where there are not as many reinstatements as there used to be. Is that fair, Mr Pirani?

Mr Pirani : That is right.

Mrs BRONWYN BISHOP: I am not interested and I am not suggesting that we go back to it.

CHAIR: No, I know that.

Mrs BRONWYN BISHOP: I am saying that by enacting this legislation it is possible that, by the action of the commission, someone will lose their vote. Whereas, in the present situation, if someone is in fact living at the same address and they have complied with their obligations and they have been wrongly taken off the roll, their provisional vote will be counted. Is that correct?

Mr Pirani : The current position—

Mrs BRONWYN BISHOP: Is that correct?

Mr Pirani : Mrs Bishop, the—

Mrs BRONWYN BISHOP: Is that correct?

CHAIR: Let him answer it.

Mr Pirani : The current provisions—

Mrs BRONWYN BISHOP: Is it correct?

Mr Pirani : The current provisions also provide for the commission to have made mistakes and for those mistakes to be corrected.

CHAIR: The reality is that—

Mrs BRONWYN BISHOP: So you are saying yes.

Mr Pirani : The commission does make mistakes, Mrs Bishop.

Mrs BRONWYN BISHOP: Correct. The point I make to you is that if you make an error in removing someone from the roll when they ought not to have been because they in fact have continued to live at that address or they have complied with their obligations, that provisional vote will be counted. Is that correct?

Mr Pirani : Mrs Bishop, no, sorry.

CHAIR: No, it is not.

Mr Pirani : The issue, and the process set out in schedule 3, is that we rely upon the certified list of voters. It is that address which is used when we do the matching under paragraph 6. If a person has been removed and we are aware of it before close of rolls, we can alter the rolls under section 105. However, if a person has turned up to a polling booth and they have a different address and we have objected them off the roll because they did not respond to previous correspondence, or for whatever reason, and they believe that has been done incorrectly because it is not the same address, their vote will still be excluded. There is no change between the current process and what is proposed.

CHAIR: Except that more people would have their vote preserved under these amendments than the current act. In other words, this is a benefit for current electors—the net benefit. I just want the answer to this question.

Mr Killeysteyn : That is correct, because we are focused on the 600,000 people who drop off for a range of reasons.

CHAIR: So, if we do not pass these laws in their proposed form, more electors would be disenfranchised than if they were passed?

Mr Killeysteyn : The same number of electors would be disenfranchised as is currently the case, because we would simply have the same sets of tools which require people to complete an enrolment form. That is the process we are seeking to—

Mrs BRONWYN BISHOP: Even you have to think that is bad principle. We are dealing with criminal offences here. We have long had it in our law that it is better to have one innocent man not convicted and that we let others go free who are guilty than the other way around. In this case what we are looking at is whether it is possible for the Commissioner to disenfranchise people by his actions in the name that you have just put forward so that we might gather in a lot more who might not. I find that offensive. If the obligation—

CHAIR: A lot fewer will be disenfranchised. I will finish on this note: if the party that has opposed red tape since Menzies created it is now arguing for more red tape, the net effect is fewer people get to vote.

Mrs BRONWYN BISHOP: That is absolute rubbish. I am arguing that the obligation of the individual elector shall be sacrosanct and the obligation to be properly enrolled remains with the elector and not with the intervention of a government agency which will see its workload reduced.

CHAIR: If there are further supplementary questions that Mrs Bishop wants to ask the commission we will write to you and ask you to clarify certain things. At this stage we look like having another hearing, because there has been a request for another submitter to come before the committee. We will probably do that at the same time next week.

Mrs BRONWYN BISHOP: That is fine.

CHAIR: Then we will do our report.

Mrs BRONWYN BISHOP: In the context of legislators and public servants, we establish the Westminster system—that is, the government or the ministers and legislators make policy and the Public Service carries it out, not the other way round.

CHAIR: I prefer the principles—we will not go into it—of a fierce and independent Public Service, where they are entitled to provide a level of advice—

Mrs BRONWYN BISHOP: Give advice to the minister of the day.

CHAIR: I do not know that the inference you are making—that somehow the commission is breaching that.

Mrs BRONWYN BISHOP: I think Senator Ryan made some very good comments about what is policy.

CHAIR: I just think it is a cheap shot and I do not think it has any substance. Frankly, I am getting a bit sick and tired that every time the commission appears in front us they have to cop this. I would not cop it if I were appearing in front of you. I think they have been pretty respectful.

Mr Killeysteyn : Can I just point out that paragraph 7(1)(d) of the Commonwealth Electoral Act explicitly mandates the AEC to give information and advice to parliament. The latest definition I have seen in the Macquarie Dictionary is an opinion recommended more often as worthy to be followed—that is, I shall act on your advice. The AEC has been fulfilling that mandate since it was conceived in 1984 to provide advice and recommendations. I do not accept, not only on behalf of myself but on behalf of my colleagues in the AEC, that if there is a disagreement at the political level over a particular policy question, as there is in this case, it is therefore inappropriate for the AEC to provide advice which some may see as supporting one policy over another.

Mrs BRONWYN BISHOP: With respect, Mr Killesteyn—

Mr Killesteyn : Indeed, it is precisely in such a case that I believe the community benefits most from knowing that the parliament will have access to expert and professional advice, which in this case is motivated by the objective of enhancing the quality of Australia's electoral processes from the point of view of the voter—in other words, the franchise.

Mrs BRONWYN BISHOP: The Electoral Commission is charged with giving advice to the government of the day. Here you are making submissions.

Mr Killesteyn : It is not a charge with responsibility to give advice to the government of the day; it is accountable to parliament, not to the government.

Mrs BRONWYN BISHOP: You accountable to parliament but here you are giving a submission.

CHAIR: Indeed—

Mrs BRONWYN BISHOP: And I find it interesting when it is in lock-step with the government.

CHAIR: I have been on this committee—

Mr Killesteyn : I reject the notion that we are biased, Mrs Bishop.

CHAIR: Mrs Bishop, I have been on this committee on and off for the 22 years I have been in parliament. So this is my eighth parliament; not as many as yourself, which I respect. We had this blue in 1990 in my first term. It has always been accepted that the commission would give fierce and independent advice, irrespective. Sometimes it has favoured the policies of the current opposition, sometimes not. It has not been held against it. We cannot take that any further today.

Mrs BRONWYN BISHOP: We are dealing with a specific bill here today.

CHAIR: Yes, that is right.

Mrs BRONWYN BISHOP: If we were dealing with it more broadly we would be looking at their actions with regard to the HSU, with regard to failure to use cars, failure to prosecute, but it is not for today.

CHAIR: You can pursue that, but, as I said, that is a separate matter.

Mrs BRONWYN BISHOP: Not for today.

CHAIR: That is a separate matter. But, you know—

Mrs BRONWYN BISHOP: They are cumulative.

CHAIR: They are cumulative actions? You have a particular view. I happen to know that your view is not shared by all of your colleagues, but that is another matter.

Mrs BRONWYN BISHOP: I didn't know you had so many friends in our ranks.

CHAIR: I have probably got more friends in your place than my place.

Mrs BRONWYN BISHOP: You can't insult our people like that.

CHAIR: There being no objection, the committee authorises publication, including publication on the parliamentary database, of the proof of transcript of the evidence given before it at the public hearing today.

Committee adjourned at 10:52