2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT (ASSURANCE OF SENATE COUNTING) BILL 2021

                                                                                                               

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Special Minister of State,

the Hon Ben Morton MP)

 

 

                                                                                           

The following abbreviations and acronyms are used throughout this Explanatory Memorandum.

Abbreviation	Definition
AEC	Australian Electoral Commission
Bill	Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021
Candidate	An individual seeking nomination in an election as a Senator or as a member of the House of Representatives
Electoral Act	Commonwealth Electoral Act 1918
ICCPR	International Covenant on Civil and Political Rights
Item	Refers to an item in the Bill
JSCEM	Joint Standing Committee on Electoral Matters

 

 

 

ELECTORAL LEGISLATION AMENDMENT (ASSURANCE OF SENATE COUNTING) BILL 2021

GENERAL OUTLINE

The Bill amends the Electoral Act to strengthen the integrity of Australia’s electoral system by increasing the transparency and assurance of Senate counting, including independent assurances of the computer systems and processes used to capture and count votes.

The Bill amends the Electoral Act to:

·          require the Electoral Commissioner to arrange an independent person or body accredited by the Australian Signals Directorate to conduct a risk assessment of the security of the computer systems used to scrutinise (i.e. scan, store and count) votes for a Senate election. This security risk assessment will be undertaken prior to each federal election or other Senate electoral event, and the Electoral Commissioner will be required to publish a statement advising that the assessment has been completed;

·          require the Electoral Commissioner, from 1 January 2023, to arrange an independent person or body to conduct an assessment on the software used by the computer in a Senate election to scrutinise the votes prior to each federal election or other Senate electoral event. This assessment is to determine if the software distributes preferences and elects candidates in accordance with the requirements of section 273A of the Electoral Act. The Electoral Commissioner will be required to publish a statement advising that this process has been completed and whether the accuracy of the system is assured to the appropriate standard;

·          require the Electoral Commissioner to verify that the version of the counting software used for an election is the assured version no more than 7 days before the election and advise of any variations to the version and the reason for those variations within 7 days of the return of the writ;

·          require the Electoral Commissioner to arrange a statistically significant sample of ballot papers to be checked throughout the conduct of the scrutiny of votes. This is to assess if the electronic data captured during the scrutiny reflects the physical data recorded on ballot papers by voters. The Electoral Commissioner will be required to publish the methodology used for the sampling and the process used for reconciling preferences prior to the election. The Electoral Commissioner must also publish the outcomes of the sampling assurance within 14 days after the return of the writ for the Senate election;

·          clarify the process for resolving candidate ties, and align the ultimate tie-breaking mechanism in respect of tied candidates for last vacancy, order of election and surpluses for the Senate with existing House of Representatives processes, which are resolved ‘by lot’ in the rare case these are required;

·          clarify that the ‘bulk exclusion’ process is not required to be used in the computerised scrutiny process;

·          allow a scrutineer to request access to the relevant original ballot paper to resolve a question about formality or a preference vote being counted in the scrutiny of a Senate election, subject to control against unreasonable, frivolous or vexatious requests that would put at risk the start of the term of service for Senators under section 13 of the Constitution; and

·          require the Electoral Commissioner to publish Senate election data for each formal ballot cast in the election within 7 days of the return of the writ for a Senate election.

These amendments seek to increase public confidence in Australia’s electoral processes and outcomes in the context of increased use of technology in the Senate scrutiny, and respond to recommendations from the JSCEM Report on the conduct of the 2016 federal election and matters related thereto .

FINANCIAL IMPACT STATEMENT

Implementation costs are estimated to be $1.5 million in 2021-22. Financial implications for future federal elections will be included as part of the ongoing election budget.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill. The amendments have been assessed as compatible with Australia’s human rights obligations.

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Human rights implications

The impact of the Bill on the following right from the ICCPR has been considered:

·          the right to political participation under Article 25.

Article 25—Political participation

1.     The Bill engages the right to political participation under Article 25 of the ICCPR because it enhances the ability of candidate scrutineers to conduct independent scrutiny of the counting process, including by requesting access to a specific physical ballot paper in addition to a scanned copy. The Bill also places a limitation on this by providing that some requests may be refused by an Australian Electoral Officer if in the officer’s opinion these requests would unreasonably delay the scrutiny and put at risk the writ for the election being returned before the start of the term of service of the successful candidates.

2.     The right to freedom of political participation is subject to permissible limitations where these limitations are authorised by law and not arbitrary, and are necessary for the respect of the rights or reputation of other, for the protection of national security, public order, or public health or morals.

3.     The limitation on scrutineers to request access to a specific physical Senate ballot paper is proportionate to the legitimate end sought and is reasonable and necessary in the circumstances, as it is subject to appropriate safeguards, and is only able to be engaged where, in the opinion of the Australian Electoral Officer, granting the request would unreasonably delay the scrutiny and put at risk the writ for the election being returned before the start of the term of service of the successful candidates. For example, this could occur if a scrutineer were to make multiple unreasonable, frivolous or vexatious requests which would delay the progress of the count and interfere with the commencement of Senate terms by 1 July, as required by section 13 of the Constitution .

4.     The proposed limitation is provided by law, and provides for an appropriate balance between ensuring scrutineers are able to effectively participate in the scrutiny, while allowing the scrutiny to proceed in a timely manner.

5.     This limitation is proportionate to a legitimate end being sought, reasonable and necessary in the circumstances and consistent with Article 25 of the ICCPR.

Conclusion

6.     This Bill is compatible with human rights, because to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.

 

ELECTORAL LEGISLATION AMENDMENT (ASSURANCE OF SENATE COUNTING) BILL 2021

NOTES ON CLAUSES

Clause 1 - Short title

1.       Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (Assurance of Senate Counting) Act 2021 (the Act).

Clause 2 - Commencement

2.              Subclause 2(1) provides that the provisions in column 1 of the Commencement table commence at the time set out in column 2.

3.              Item 1 in the Commencement table provides that:

·          Sections 1-3 of the Act, and anything in this Act not elsewhere covered by the Commencement table, commences on the day after the Act receives the Royal Assent;

·          Schedule 1 of the Act commences on the day after the Act receives the Royal Assent; and

·          Schedule 2 of the Act commences on 1 January 2023.

4.              A note is inserted below the Commencement table stating that the table relates only to the provisions of the Act as originally enacted and that the table will not be amended to deal with any later amendments of the Act.

5.              Subclause 2(2) provides that information in column 3 of the Commencement table is not part of the Act. Information may be inserted into column 3, or information in column 3 may be edited, in any published version of the Act.

Clause 3 - Schedules

6.              Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

 

 

Schedule 1 - Amendments commencing day after Royal Assent

Part 1 - Assurance

Commonwealth Electoral Act 1918

1.              Item 1 inserts new sections 273AA and 273AC. These new sections are intended to provide greater public confidence in the integrity of the computerised scrutiny of votes in a Senate election and address recommendation 3 of the JSCEM Report on the conduct of the 2016 federal election and matters related thereto .

2.              New subsections 273AA(1)-(4) provide for a security risk assessment to be conducted on the computer systems used to scrutinise the votes in a Senate election. The Electoral Commissioner is to arrange for an independent person or body accredited by the Australian Signals Directorate (ASD) to conduct the security risk assessment before each Senate election for which the computer systems are to be used.

3.              This may include an assessment conducted by a person accredited through the

InfoSec Registered Assessors Program (an ‘IRAP Assessor’) who has been endorsed by ASD to independently assess cyber security posture, identify security risks and suggest mitigation measures based on the Attorney-General's Department's Protective Security Policy Framework (PSPF), the  Australian Government Information Security Manual (ISM) , and other Australian Government security requirements, guidance and advice.

4.              At the completion of the security risk assessment the accredited assessor must give a written report of the assessment to the Electoral Commissioner. The report may include recommendations to reduce or eliminate any risks that could affect the security of the computer systems.

5.              New subsection 273AA(4) requires the Electoral Commissioner to publish a statement of assurance on the Electoral Commission’s website stating that a security risk assessment of the computer systems has been completed as soon as practicable after the receipt of the report. Publication of the report can provide the community confidence that there have been expert independent checks to ensure that relevant systems are robust, without disclosing specific details about system defences to potential hostile actors.

6.              Key components of the Senate scrutiny process involve scanning of numbers marked by voters on their ballot papers and translation of those images into matching datasets.  New section 273AC requires the Electoral Commissioner to arrange for statistically significant samples of ballot papers to be checked at the counting centre where the scrutiny is being conducted during the computerised scrutiny of votes in a Senate election. The ballot sampling process is to assure that the electronic data captured when counting the votes reflects the data recorded on the ballot papers.

7.              The purpose of the sampling process is to determine if the electronic data capture of the AEC’s scanning software accurately represents the data recorded on the ballot paper. As such, this process is not part of the scrutiny of the votes for the election, but is open to the inspection of scrutineers.

8.              New subsection 273AC(2A) requires the Electoral Commissioner to ensure that when a  Senate election is held concurrently with a general election for the House of Representatives, at least 5,000 ballot papers in total are checked across each Senate election nationwide, throughout the scrutiny of votes. If the Senate election was held alone, for example, a Senate re-run election for a particular State or Territory, the Electoral Commissioner must ensure that at least 1,000 ballot papers are checked throughout the scrutiny of votes for the election.

9.              New subsection 273AC(5) requires the Electoral Commissioner to publish the methodology to be used for the ballot paper sampling process and the process used for reconciling preferences on the AEC’s website before the polling day for a Senate election.

10.          New subsection 273AC(6) requires the Electoral Commissioner to publish a statement on the AEC’s website setting out the outcomes of the ballot paper sampling process within 14 days after the return of the writ for the Senate election.

11.          New subsection 273AC(7) provides a definition of ‘counting centre’ for the purpose of new section 273AC, to mean the premises where the scrutiny or counting of ballot papers is being, conducted. 

Part 2 - Counting

Commonwealth Electoral Act 1918

12.          Items 2-11 amend existing section 273 of the Electoral Act, which sets out the process in which the scrutiny of votes in Senate elections occurs to clarify tie-break rules consistent with the intent of the Electoral Act.

13.          Items 2, 3 and 4 are intended to align an Australian Electoral Officer’s discretion to resolve certain rare cases of tied candidates in Senate elections with the mechanisms used for House of Representatives elections (set out in section 274 of the Act), where such ties are ultimately resolved ‘by lot’.

14.          These items provide that during the scrutiny of votes in Senate elections the Australian Electoral Officer for the State will, where necessary, determine order of election, relative order of standing, and surpluses for tied candidates by lot, which is consistent with the process for the scrutiny of votes in the House of Representatives.

15.          Item 2 amends existing subsection 273(17) by omitting “shall have a casting vote but shall not otherwise vote at the election” and substituting “must determine by lot which of those candidates is to be elected”. Existing subsection 273(17) deals with the election of candidates in respect of the last vacancy for which two continuing candidates remain. The amendment provides that the Australian Electoral Officer for the State must determine the last vacancy by lot, not by a casting vote.

16.          Item 3 amends existing paragraph 273(20)(b) by inserting “by lot” after “shall determine”. Existing paragraph 273(20)(b) deals with the order in which candidates shall be taken to have been elected, and provides that should there be tied candidates with no last count of the candidates having a different number of votes, the Australian Electoral Officer for the State shall determine the order in which they shall be taken to have been elected. The amendment provides that the Australian Electoral Officer for the State must determine the order in which they shall be taken to have been elected by lot.

17.          Item 4 amends existing subsection 273(22) by inserting “by lot” after “shall determine”. Existing subsection 273(22) deals with the order of any transfers of surplus votes when two or more candidates have equal surpluses, and provides that should there be tied candidates with no last count of the candidates having a different number of votes, the Australian Electoral Officer for the State shall determine the order in which the surpluses shall be dealt with. The amendment provides that the Australian Electoral Officer for the State must determine the order in which the surpluses shall be dealt with by lot.

18.          Existing subsection 273(29) defines certain expressions used in section 273. Item 5 inserts definitions for the terms ‘relative order of standing’ and ‘unbreakable tie’. These are consequential amendment to Items 7 and 8 and provide the conceptual basis for resolving a tie between two candidates with the same number of votes at a particular time in a Senate election.

19.          Item 5 also provides that the ‘relative order of standing’ is determined by referring to the last count at which the tied candidates (referred to as continuing candidates) had a different number of votes. The candidate with the greater number of votes at a count where the candidates have a different number of votes will have the higher relative order of standing than the other candidate. The ‘relative order of standing’ for an ‘unbreakable tie’ is resolved pursuant to Item 6 below.

20.          Item 6 provides that where 2 or more tied candidates in a Senate election have the same number of votes at every count (including the first count), such that there is an ‘unbreakable tie’, the Australian Electoral Officer for the State must determine the ‘relative order of standing’ of those candidates by lot. This is consistent with the use of lottery as the ultimate tie-breaking mechanism in Items 2, 3 and 4 , and with House of Representatives processes.

21.          Item 7 is a consequential amendment to reflect the insertion of new paragraph 273(31)(c) in Item 8 below.   

22.          Item 8 repeals existing paragraph 273(31)(b) and substitutes it with paragraphs 273(31)(b) and (c). The ‘relative order of standing’ of 2 tied candidates is determined by paragraph 273(31)(b). Paragraph 273(31)(c) requires the ‘relative order of standing’ of 3 or more tied candidates to be determined pursuant to new subsection 273(31A) at Item 9 below.

23.          Item 9 inserts new subsection 273(31A), to determine the order of standing for 3 or more tied candidates where each of those candidates have the same number of votes at a particular time. This clarifies the procedures for ranking candidates in the order of the poll in the case of a tie between 3 or more candidates.

24.          A series of case studies follow below to illustrate the working of this new subsection.

25.          Item 10 amends existing subsection 273A(5) by omitting “subsections 273(8) to (32) (inclusive)” and substituting “subsections 273(8) to (13AA) and subsections 273(14) to (32)”.

26.          Existing subsection 273A(5) of the Electoral Act provides that the Australian Electoral Officer must ascertain the successful candidates, and their order of election, using a computer to apply the principles set out in existing subsections 273(8) to (32). Those subsections also include existing subsections 273(13AA) to (13C), which provides for the bulk exclusion of candidates.

27.          The process of bulk exclusion is intended to improve the efficiency of a manual scrutiny of the votes. With the introduction of computerised scrutiny for Senate elections the process for bulk exclusions has become obsolete because computers can efficiently apply the preference distribution method consistent with the intent of voters, without a need for short-cuts. The amendment by Item 10 recognises this by providing that the principles in existing subsections 273(13AA) to (13C) do not apply to the computerised scrutiny of Senate votes.

28.          Item 11 amends existing subsection 273A(9) by omitting “subsections 273(8) to (30) (inclusive)” and substituting “subsections 273(8) to (13AA) and subsections 273(14) to (30)”.

29.          This amendment removes the unnecessary requirement to conduct bulk exclusions where a re-count of Senate votes is required under existing section 282 for the same reasons as outlined at Item 10 above.

Part 3 - Other amendments

Commonwealth Electoral Act 1918

30.          Item 12 amends section 28 of the Electoral Act to provide that the functions of the Electoral Commissioner to arrange for the risk and assurance assessments of the computerised systems used for the scrutiny of Senate ballot papers outlined at Item 1 (new sections 273AA and 273AC) above are non-delegable. This recognises the importance of processes to assure the quality of key computer systems, by aligning responsibility for assurance to the most senior officer in the AEC.

31.          Item 13 is a consequential amendment to Item 14 to provide that the subsection is subject to new subsections 273A(6AA) and (6AB).

32.          Item 14 inserts new subsection 273A(6AA) to allow a scrutineer who is observing  the computerised scrutiny for a Senate election to ask the officer conducting the scrutiny for access to an original ballot paper for the purposes of resolving a question about:

·          the formality of the original ballot paper; or

·          a preference vote being counted in the scrutiny.

33.          Item 14 also inserts a new subsection 273A(6AB) to require that the officer grant the request unless, in the opinion of the Australian Electoral Officer, the granting of the request would unreasonably delay the scrutiny and put at risk the writ for the election being returned before the start of the term of service of the successful candidates, being the first day of July following the election as per section 13 of the Constitution. This item also provides that if the officer grants the request, the question about the formality of the ballot paper or a preference vote being counted in the scrutiny is to be resolved by reference to the original ballot paper.

34.          The Note to new subsection 273A(6AB) explains that the Australian Electoral Officer may form the opinion that granting a scrutineer’s request would unreasonably delay the scrutiny for the purposes of paragraph 273A(6AB)(a), if a scrutineer made multiple unreasonable, frivolous or vexatious requests and the Australian Electoral Officer has warned the scrutineer that further requests may not be granted because they would unreasonably delay the scrutiny . Noting the importance of transparency in the electoral process, this is intended to be a high threshold and to include conduct that is calculated to obstruct or to unreasonably delay the progress of the Senate count, and where that activity could interfere with the commencement of Senate terms by 1 July, as required by section 13 of the Constitution.

35.          Item 15 inserts new section 283A, which requires the Australian Electoral Officer, within 7 days after the return of the writs for a Senate election, to publish on the Electoral Commission’s website:

·          information identifying each formal ballot paper cast in the election by the Division, the vote collection point, the batch number and ballot paper number within the batch, and the full set of marked preferences; and

·          the distribution of preferences received by each candidate for the State or Territory after each count under section 273 in the election.

 

36.          This amendment legislates the AEC’s existing process for publishing preference data, including the distribution of preferences after each Senate election in the AEC virtual tally room to support transparency and public confidence in electoral outcomes. This ensures that Australia’s Senate count is open to the scrutiny of psephologists and other electoral experts.

37.          This data is fully anonymised, and does not identify any voter, or connect ballot papers to voters. This ensures that Australia’s Senate count is open to the scrutiny of psephologists and other electoral experts. The raw data is available to be downloaded so it can be counted independently using external systems. Parties, candidates, academics and other interested persons can use this data to replicate the AEC count and verify all stages of preference distributions.

 

 

 

Schedule 2 - Amendments commencing 1 January 2023

Part 1 - Main Amendments

Commonwealth Electoral Act 1918

38.          Item 1 of Schedule 2 inserts new section 273AB, which sets out a process that must be undertaken to assure the accuracy of counting software for scrutiny of votes in Senate election s.

39.          New section 273AB is intended to provide greater public confidence in the integrity of the computerised scrutiny of votes in a Senate election, and address recommendation 3 of the JSCEM Report on the conduct of the 2016 federal election and matters related thereto . This item has a different commencement date to the new sections 273AA and 273AC due to allow sufficient time to identify a suitable independent assessor, given the proximity of the next election. Existing AEC software assurance processes will continue to occur.

40.          New subsections 273AB(1)-(2) require the Electoral Commissioner to arrange for an independent and appropriately qualified assessor to conduct an assessment of the counting software used by a computer to scrutinise the votes in that Senate election.

41.          This requires an assessment of whether the counting software distributes preferences and elects candidates in accordance with the requirements of section 273A of the Electoral Act. This assessment gives assurance that the counting systems do not result in mathematic error, or incorrect sequencing of counting, calculations, or transfers of preferences. It therefore provides the public confidence that the right candidates will be elected in the correct order, consistent with the will of the voters and the rules of the count.

42.          The assessment must be conducted before each Senate election for which the software is to be used, ensuring that the accuracy of systems used to capture and count votes is appropriately tested and assured.

43.          New subsection 237AB(3) requires the assessor to provide a written report to the Electoral Commissioner which may include recommendations relating to the accuracy of the counting software, its use or any variations required to improve or ensure its accuracy.

44.          As soon as practicable after receiving the report, new subsection 273AB(4) requires the Electoral Commissioner to publish a statement on the Electoral Commission’s website stating:

·          that an assessment of the accuracy of the counting software has been completed as required by new subsection 237AB(1); and

·          whether the accuracy of the counting software is assured to the appropriate standard.

45.          New subsection 237AB(5) requires the Electoral Commissioner to publish a statement verifying that the version of the counting software to be used to scrutinise the votes in the election is the version of the software that was assessed and assured under this section before the election. This notice is to be published on the AEC’s website in the 7 days before the Senate election for which the counting software is to be used.

46.          New subsection 237AB(6) requires the Electoral Commissioner to publish a statement verifying that the version of the counting software that was used to scrutinise the votes in the election was the version of the software that was assessed and assured under section 237AB before the election. This statement must be published on the Electoral Commission’s website within 7 days after the return of the writ for the Senate election for which the counting software was used.

47.          New subsection 237AB(7) requires that, if variations were made to the version of the counting software after the assessment and assurance of that version under section 237AB, the statement must also include a description of the variations, and the reasons for the variations. This process recognises that software may be iteratively updated to remain current with technological improvements, but that, where such changes occur after assurance of the counting systems, the public is entitled to an explanation. This statement is intended to give public confidence that any late changes would not impact on compliance of the count with the requirements of section 273A.

Part 2 - Other amendments

Commonwealth Electoral Act 1918

48.          Item 2 of Schedule 2 amends section 28 of the Electoral Act to provide that the function of the Electoral Commissioner to arrange for the assurance of the accuracy of counting software for the scrutiny of votes in Senate elections as outlined at Item 1 (new section 273AB) is non-delegable.