2019-2022

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

 

ELECTORAL LEGISLATION AMENDMENT (VOTER IDENTIFICATION) BILL 202 2

 

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator McGrath)

 

ELECTORAL LEGISLATION AMENDMENT (VOTER IDENTIFICATION) BILL 2022

 

OUTLINE

This Bill makes amendments to the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to require electors to display a proof of identity document, as defined by this Bill, before casting their ballot in a federal election or referendum.

This Bill mirrors the proposed amendments in the Electoral Legislation Amendment (Voter Integrity) Bill 2021 (the 2021 Bill). The Notes on Clauses and Human Rights Compatibility Statement herein, also reflect those in the 2021 Bill.

The measures in this Bill require voters to present acceptable identification documentation prior to receiving a ballot paper at polling places, pre-poll locations, and mobile polling locations, as recommended by the Joint Standing Committee on Electoral Matters (JSCEM) reports into the conduct of the 2013, 2016 and 2019 elections.

The broad range of proof of identity documents outlined in this Bill ensure that there is no financial burden placed on electors for them to meet the requirements of what is deemed acceptable identification.

Voters who do not have an acceptable form of identification will be able to have their identity attested to by another enrolled person who does have identification documentation by the attester completing an approved form, or alternatively cast a declaration vote.

No voter will be denied a vote because they do not have an acceptable form of identification.

The introduction of requirements for proof of identity will lead to greater protection against voter impersonation, and greater confidence in the electoral process and the integrity of the results. As a result, this Bill will bring the Australian electoral system into line with voter identification practices of other liberal democracies such as Canada and Sweden.

 

This Bill aims to empower voters and safeguard the integrity of the electoral process which is the cornerstone to our democratic process.

 

 

 

NOTES ON CLAUSES

 

Clause 1 - Short title

1.              Clause 1 is a formal provision specifying the short title of the Bill when enacted will be the Electoral Legislation Amendment (Voter Identification) Bill 2022 (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 the whole of the Act commences the day after the Act receives the Royal Assent.

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

Commonwealth Electoral Act 1918

7.       Part I of the Electoral Act includes definitions of terms used throughout the Act.

8.       Item 1 inserts the new term ‘proof of identity document’ into section 4 (‘Interpretation’) of the Electoral Act . This new term has the meaning given to it in new section 4AB (see Item 2 below).

9.       Item 2 inserts new section 4AB that sets out the definition of ‘proof of identity document’ for the purposes of the Electoral Act. This term is defined to include a wide range of proof of identity documents, including in electronic format. This is to provide voters with many alternative options to demonstrate their identity, while also ensuring that the options are reliable for identification and integrity purposes.

10.   The definition of ‘proof of identity document’ is set out in paragraphs 4AB(a)-(k) and includes:

·          current photographic identification in the form of a driver’s license, passport, or proof of age card;

·          government-issued identification card or documentation, including a Medicare card, birth certificate, Commonwealth seniors health card, taxation notice of assessment, Australian Citizenship certificate and Commonwealth pensioner concession card;

·          an account statement or notice issued by an Australian financial institution, local government body, utilities provider, or carriage service in the last 12 months;

·          a current credit or debit card issued by an Australian financial institution;

·          a document that relates to the affairs of a particular person, that specifies the person’s name, issued by an Aboriginal or Torres Strait Islander land council or land trust, or a body corporate prescribed by regulations under the Native Title Act 1993 ; and

·          an AEC-issued enrolment confirmation notice.

 

11.   New paragraph 4AB(k) provides that a document issued to a person in the ordinary course of business by an Aboriginal or Torres Strait Islander land council or land trust (however described), or a native title body corporate can be a proof of identity document.

12.   For example, this may include a letter or email sent by a land council to a person, which includes the person’s full name, giving notice about the land council’s annual general meeting. The purpose of this subparagraph is to include accessible options for proof of identity documents for Aboriginal or Torres Strait Islander Australians, and support electoral participation of Aboriginal and Torres Strait Islander communities.

13.   For the avoidance of doubt, nothing in new section 4AB confers on any entities or organisations any new requirement to issue documents for the purpose of providing voters with proof of identity documents, other than documents that are issued in the ordinary course of their business.

14.   In circumstances where voters have recently changed residential address, and a voter’s proof of identity document contains a different residential address to the address on the certified list or approved list, the AEC officer will be permitted to ask the voter questions to confirm the address included on certified or approved list of voters. This process is detailed further at Items 7 and 14 below.

15.   Note 1 is inserted after new section 4AB to provide a non-exhaustive set of examples of identification cards that come under new paragraph 4AB(f). These examples are a medicare card (within the definition of that term in the National Health Act 1953 ), a Commonwealth seniors health card, a Commonwealth pensioner concession card and a Commonwealth Repatriation Health Card.

16.   Note 2 is inserted after Note 1 to provide a non-exhaustive set of examples of account statements and notices that come under new paragraph 4AB(g). These examples are a council rates notice, an electricity account statement, a gas account statement, a water and sewerage account statement, a mobile phone account statement, and an internet service account statement. 

17.   New section 4AB also specifies that the definition of ‘proof of identity document’ includes electronic forms of any of the kinds of proof of identity documents listed. This enhances the accessibility of acceptable forms of identification and recognises the increasing move to paperless accounts and notice systems and electronic identification like the New South Wales Digital Driver Licence.

18.   Item 3 inserts new subparagraphs 200DG(1)(aa) and 200DG(1)(ab). This is a consequential amendment to the changes made at Item 7 below and requires a voter to show an acceptable form of identity document and for a voting officer to be reasonably satisfied of the identity of the voter before a person is entitled to vote by pre-poll ordinary vote.

19.   Existing section 200DG(1) of the Electoral Act sets out when a voter is entitled to vote by pre-poll ordinary vote. Existing section 200DG(2) of the Electoral Act sets out when a voter is not entitled to vote by pre-poll ordinary vote.

20.   Division 3 of Part XVA of the Electoral Act sets out the process and conditions for voting by pre-poll ordinary vote. Ordinary votes are votes that are placed directly into a ballot box without an envelope. This is in contrast to pre-poll ‘declaration votes’, which require the voter to sign a declaration (instead of being marked off the certified list), are placed in a sealed envelope, and go through additional scrutiny before they can be admitted to the count.

21.   Item 4 repeals paragraph 200DG(2)(b) and inserts new paragraph 200DG(2)(a). This is a consequential amendment to the changes made at Item 7 below and requires a voter to show an acceptable form of identity document and for a voting officer to be reasonably satisfied of the identity of the voter before a person is entitled to vote by pre-poll ordinary vote. The numbering of paragraphs in this section is not sequential due to the prior repeal of certain subparagraphs.

22.   Item 5 repeals paragraph 200DG(2)(c) and substitutes new paragraph 200DG(2)(c). This is a consequential amendment to the changes made at Item 7 below and requires a voter to show an acceptable form of identity document and for a voting officer to be reasonably satisfied of the identity of the voter before a person is entitled to vote by pre-poll ordinary vote.

23.   Item 6 inserts new subsection 200DG(3) to ensure voters who are not entitled to vote by pre-poll ordinary vote under section 200DG are given guidance about voting by pre-poll declaration vote. If a voter is not entitled to vote by pre-poll ordinary vote, the voting officer must inform the voter that the voter may make a pre-poll declaration vote (in accordance with Division 4 of the Electoral Act).

24.   Existing section 200DI of the Electoral Act sets out questions the voting officer puts to a voter seeking to vote by ordinary pre-poll vote. This includes questions about the voter’s identity. Item 7 repeals this section and substitutesit with a new section 200DI, which sets out the requirements for establishing a voter’s identity. This applies to all persons applying to cast a pre-poll vote, including pre-poll declaration voting.

25.   New paragraph 200DI(1)(a) requires the voting officer to request each person claiming a pre-poll vote in the election to produce a proof of identity document, as defined in section 4AB.

26.   New paragraph 200DI(1)(b) requires the voting officer ask questions of the person in order to work out whether the person has voted before in the election. The phrase ‘in the election or elections (as the case requires)’ is used to cover circumstances in which a House of Representatives election and a Senate election are being held concurrently (for example, in a federal election).

27.   Existing subsection 200DI(2) requires the voting officer to ask the voter their full name, and place of living.

28.   New subsection 200DI(2) provides that the voting officer may ask questions of the voter in order to work out the voter’s full name, place of living or both. This new provision provides the voting officer with flexibility in asking these questions if the voter’s name and/or place of living on their proof of identity document matches the details on a copy of the certified or approved list of voters. This minimises risks around names that have non-phonetic pronunciation, or variations in their potential spelling. Accordingly, where an identity document is presented, it is easier to mark the correct voter off the Electoral Roll and provide them with the right Divisional and Senate ballot papers.

29.   New subsection 200DI(3) provides that if the voting officer is not satisfied that the person is a particular person on a copy of the certified list or approved list of voters for a particular Division, the voting officer may ask other questions about matters shown on the list for the person in order to establish the person’s identity.

30.   New subsection 200DI(4) provides that a voting officer’s request to a voter to produce a proof of identity document is satisfied if:

·          the voter produces a proof of identity document (defined in section 4AB); or

·          another voter (the attester) produces their own proof of identity document to the voting officer that satisfies new subsection 200DI(5) and attests as to the first voter’s identity. This attestation option is to provide voters with an alternative way of satisfying the proof of identity document requirement to cast a pre-poll ordinary vote. The attestation must be given in the approved form, which is set out in paragraph 200DI(4)(b).

31.   New subsection 200DI(5) outlines the kinds of proof of identity document that may be produced by an attester.  Under this subsection, an attester can produce a document issued by or on behalf of the Commonwealth, or a State or Territory (or authority thereof), or a document that contains the attester’s name and place of living.

32.   For example, a couple attend a polling place to vote on polling day. One member of the couple has not brought any proof of identity document in physical or electronic format. Their partner has brought a driver’s licence. On presenting the driver’s licence to the voting officer, the partner may make an attestation in the approved form to the voting officer as to their partner’s identity. The form requires the attester to provide their full name, enrolled address, the kind of proof of identity document utilised by the attester, and the name of the voter. Once both members of the couple sign the approved form with the attester’s details provided, the partner who has not brought their identification document would satisfy the request to the voting officer and be offered an ordinary ballot.

33.   To safeguard voters’ privacy, proof of identity documents will only need to be sighted by the voting official to identify the voter. New subsection 200DI(6) prohibits a voting officer from copying, scanning or otherwise recording a proof of identity document. It further prohibits a voting officer from copying, or making a record of the kind of a proof of identity document provided, or any information contained within the document. This ensures that identity documents are only used in a federal election for their minimum necessary purpose, to confirm a voter’s identity and mark them off the Electoral Roll. The Bill recognises that it is not necessary to retain images or data related to the specific documents, after these checks have occurred.

34.   For the avoidance of doubt, new subsection 200DI(6) does not prohibit an attester from specifying the kind of proof of identity they have produced in order to attest to the identity of another voting. This provision prevents an AEC voting officer from making a copy, or record of the kind of proof identity provided, unless it is to assist an attester in the completion of their attestation form under new subsection 200DI(7).

35.   New subsection 200DI(7) allows an AEC officer to assist an attester complete (but not sign) the whole or part of the approved form for an attestation in new subsection 200DI(4), if requested. When the voting officer completes the approved form at the request of the attester, the voting officer is not deemed to be making a record of the identity documents. The attester will be required to sign the attestation form. The note to new subsection 200DI(7) refers readers to section 336, which deals with signing an approved form.

36.   Item 8 adds a Note to assist readers of section 200DJ, which deals with voters’ entitlement to vote by pre-poll ordinary vote. The note draws the readers’ attention to refer to Division 4, which deals with pre-poll declaration votes, which is how voters who do not meet the identification requirements for ordinary pre-poll voting may vote.

37.   Part XVB of theElectoral Act deals with electronically assisted voting (telephone voting). Subsection 202AB(1) provides that regulations may be made for electronically assisted voting to be used by blind and low vision people, and Antarctic voters. Item 9 adds at the end of subsection 202AB(1) a qualification that such regulations must not require a person voting by electronic assisted voting to produce a proof of identity document.

38.   Existing regulations and procedures already require voters using electronically assisted voting to authenticate their identity as part of the voting process, using an AEC-issued PIN. As such, additional identity requirements are unnecessary. PINs are provided to the voters through a process of registration. The existing process therefore gives confidence that each vote is being issued to the relevant individual. This reasoning also applies to Item 10 below.

39.   Existing subsection 202AB(1A) provides that regulations must be made for electronically assisted voting to be used by voters in Antarctica. Item 10 adds at the end of subsection 202AB(1A) a qualification that these regulations must not require Antarctic voters to produce a proof of identity document.

40.   For the avoidance of doubt, the amendments make no changes to postal voting, which is already a form of declaration vote. Postal votes are sent to the registered address of each relevant voter and the postal vote process requires a signature. As such, additional identifying requirements are unnecessary.

41.   Item 11 amends subsection 221(3) to omit ‘unless a person shows by his or her answers to the questions under section 200DI or 229 that he or she is not entitled to vote’ and substitute ‘subject to the application of section 200DG or 229 in relation to a person’. This is a consequential amendment related to Items 7 and 14 .

42.   Existing section 227 deals with mobile polling, whereby the AEC establishes mobile polling booths for voters who are unable to get to a polling place. Item 12 inserts a Note under subsection 227(3), which clarifies that the proof of identity requirements for ordinary pre-poll and polling day voting also apply to votes cast at mobile booths.

43.   Item 13 renames the heading for section 229 to ‘Establishing voter’s identity etc.’ to clarify the function of this section.

44.   Item 14 repeals subsections 229(1)-(4), which set out questions a presiding officer or polling official is required to ask a voter on polling day, and substitutes these with new subsections 229(1)-(4B).

45.   The new subsections set out the requirements for establishing a voter’s identity. These mirror the equivalent requirements in pre-poll voting under new section 200DI, with an additional question for absent voters in new subsection 229(3). This additional reference to absent voters reflects the different terminology used in Part XVI, which relates to voting on polling day, and Part XVA, which relates to pre-poll voting.

46.   New paragraph 229(1)(a) requires a presiding officer or polling official to request that each voter claiming to vote produce a proof of identity document.

47.   New paragraph 229(1)(b) requires the presiding officer or polling official to ask questions of the person in order to work out whether the person has voted before in the election. This requirement replicates the requirements in the repealed paragraph 229(1)(c).

48.   New subsection 229(2) provides that the presiding officer or polling official may ask questions of the person in order to work out the person’s full name or the person’s place of living, or both. Similar to new subsection 200DI(2), new subsection 229(2) provides the presiding officer or polling official with flexibility not to have to ask the voter these questions if the voter’s name and/or place of living on their proof of identity document match the details on a copy of the certified or approved list of voters.

49.   New subsection 229(3) requires the presiding officer or a polling official to also ask a person voting as an absent voter to identify the Division for which they are enrolled. This provision mirrors former subsection 229(2), which is to be repealed under this amendment.

50.   New subsection 229(4) provides that, if the presiding officer or polling official is not satisfied that the person is a particular person on the certified list or approved list of voters for a particular Division, the presiding officer or polling official may ask the person other questions about matters shown on the list for the particular person to establish their identity. This provision mirrors former subsection 229(4), which is to be repealed under this amendment.

51.   New subsection 229(4A) provides that a presiding officer or polling official’s request to a voter to produce a proof of identity document is satisfied if:

·          the voter produces a proof of identity document (defined in section 4AB); or

·          another voter (the attester) produces their own proof of identity document that satisfies new subsection 229(4B) to the voting officer and attests as to the first voter’s identity. This attestation option is to provide voters with an alternative way of satisfying the proof of identity document requirement to cast an ordinary vote. The attestation must be given in the manner and form set out in paragraph 229(4A)(b)(ii).

52.   New subsection 229(4B) outlines the proof of identity document that may be produced by an attester. Under this subsection, an attester can produce a document issued by or on behalf of the Commonwealth, or a State or Territory (or authority thereof), or a document that contains the attester’s name and place of living. New subsection 229(4B) mirrors new subsection 200DI(5) regarding an attester’s acceptable proof of identity documents at Item 7 above.

53.   New subsection 229(4D) prohibits a presiding officer or a polling official from making a copy, scanning or retaining a proof of identity document. The new subsection also prohibits a presiding officer or a polling official from making a record of the kind of document provided or any information contained within the document.

54.   For the avoidance of doubt, new subsection 229(4C) does not prohibit an attester from specifying the kind of proof of identity they have produced in order to attest to the identity of another voting. This provision prevents an AEC voting officer from making a copy, or record of the kind of proof identity provided, unless it is to assist an attester in the completion of their attestation form under new subsection 229(4D).

55.   New subsection 229(4D) allows an AEC officer to assist an attester complete (but not sign) the whole or part of the approved form for an attestation in new subsection 229(4A), if requested. When the voting officer completes the approved form at the request of the attester, the voting officer is not deemed to be making a record of the identity documents. The attester will be required to sign the attestation form. The note to new subsection 229(4D) refers readers to section 336, which deals with signing an approved form.

56.   Item 15 repeals paragraphs 229(5)(a) and (b), and substitutes new paragraphs 229(5)(a) and (b) to set out the circumstances under which a person’s claim to vote (by ordinary vote) is to be rejected. New paragraphs 229(5)(a) and (b) state that, subject to rules about provisional voting in section 235 (being a form of declaration vote), a person will not be able to vote by ordinary vote if they refuse to produce a proof of identity document, refuse to answer fully questions about their name or address, provide an answer that indicates they have voted before in the election, or if the presiding officer or polling official is not reasonably satisfied of the person’s identity. Where this is the case, a voter will be offered a provisional vote (a form of declaration vote) under section 235.

57.   Item 16 inserts new subsection 229(6) that provides, where a circumstance in new paragraphs 229(5)(a) or (b) is satisfied, and the person is not claiming to vote as an absent voter, the presiding officer or polling official must inform the person that the person may cast a provisional vote in accordance with section 235. This will ensure that no voter is denied the opportunity to vote if they are unable to produce a proof of identity document.

58.   Item 17 amends paragraph 231(1)(a) to omit ‘the person’s answers to questions put to the person show that he or she is entitled to vote’ and substitute ‘neither paragraph 229(5)(a) nor (b) applies in relation to the person’. This is a consequential amendment to Items 14 and 15 above.

59.   Item 18 adds a Note at the end of subsection 231(1), which deals with the right of a voter to receive a ballot paper, to assist readers of this section to refer to section 235 which deals with provisional votes.

60.   Item 19 repeals paragraph 235(1)(c) and substitutes it with ‘paragraph 229(5)(a) or (b) applies in relation to the person and the person is not claiming to vote as an absent voter; or’. This a consequential amendment to Items 14 and 15 above.

61.   Item 20 provides that the amendments to the Electoral Act made by the Schedule apply in relation to elections the writs for which are issued on or after the commencement of the Bill (the day after the Royal Assent).

Referendum (Machinery Provisions) Act 1984

62.   Items 21-40 replicate the changes items 1-20 make to the Electoral Act to the Referendum Act to ensure consistency between these Acts. This recognises the importance of ensuring that referendums are conducted to a standard of integrity that applies at an election. By requiring a check of an identification document as the standard method for marking a voter off the Electoral Roll, these amendments reduce the risk of impersonation or accidental mark-offs against the wrong name.

63.   Item 21 inserts the new term ‘proof of identity document’ into section 3 (‘Interpretation’) of the Referendum Act . This new term has the meaning given to it in new section 3AA (see Item 22 below).

64.   Item 22 inserts new section 3AA, that that sets out the definition of ‘proof of identity document’. This is the same as the definition of proof of identity to be included in the Electoral Act ( Item 2 above).

65.   Part III of the Referendum Act deals with voting in a referendum on voting day (the day fixed for the taking of the votes for the purposes of the referendum). Item 23 repeals the heading for section 30 of the Referendum Act, ‘Questions to be put to voter’, and replaces this with the new heading ‘Establishing voter’s identity etc.’

66.   Item 24 repeals subsections 30(1)-(4) and substitutes these with new subsections 30(1)-(4C), which set out the requirements for establishing a voter’s identity for voters voting on voting day. This replicates the new Electoral Act identification requirements for voting on polling day set out in Item 14 above.

67.   Item 24 includes an additional subsection, subsection 30(4A), to streamline proof of identity requirements where a referendum is held on same day as the polling for an election, and the presiding officer or a polling official is reasonably satisfied of the identity of the voter under new section 229 of the Electoral Act ( Item 14 above).

68.   Item 25 repeals paragraphs 30(5)(a) and (b) and substitutes new paragraphs 30(5)(a) and (b) to set out the circumstances under which a person’s claim to vote by ordinary vote in a referendum is to be rejected. These replicate new paragraphs 229(5)(a) and (b) of the Electoral Act outlined in Item 15 above.

69.   Item 26 inserts new subsection 30(6) that provides, where a circumstance in new paragraphs 30(5)(a) or (b) is satisfied, and the person is not claiming to vote as an absent voter, the presiding officer or polling official must inform the person that they may cast a provisional vote in accordance with section 37 of the Referendum Act. This will ensure that no voter is denied the opportunity to vote in a referendum if they are unable to produce a proof of identity document.

70.   Items 27-30 are consequential amendments to give effect to the new identification requirements set out in Items 24 and 25 above.

71.   Existing section 51 deals with mobile polling for the purposes of a referendum. Item 31 inserts a Note under subsection 51(3), which clarifies that the proof of identity requirements for ordinary pre-poll and voting day voting in a referendum also apply to votes cast at mobile booths.

72.   Part IVA of the Referendum Act deals with pre-poll voting in a referendum. Section 73CG sets out when a person is entitled to vote by pre-poll ordinary vote. Item 32 inserts new paragraphs 73CG(1)(aa) and (ab) to reflect the requirements for a voter to be entitled to vote by pre-poll ordinary vote. This is a consequential amendment to Item 36 below.

73.   Item 33 repeals paragraph 73CG(2)(b) and substitutes it with new paragraph 73CG(2)(a). This is also a consequential amendment to Item 36 below, and reflects the new proof of identity provisions set out in that item. It is noted the numbering of the substitute paragraph is updated as there is no current subparagraph 73CG(2)(a).

74.   Item 34 is a consequential amendment to Item 36 above.

75.   Item 35 inserts new subsection 73CG(3) to ensure voters who are not entitled to vote by pre-poll ordinary vote under section 73CG are given guidance about voting by pre-poll declaration vote. If a voter is not entitled to vote by pre-poll ordinary vote, the voting officer must inform the voter that the voter may make a pre-poll declaration vote.

76.   Current section 73CI of the Referendum Act sets out questions the voting officer puts to a voter seeking to vote by ordinary pre-poll vote. Item 36 repeals current section 73CI and replaces this with new section 73CI, which sets out the processes for a voting officer to establish a voter’s identity. This replicates the new Electoral Act identification requirements for pre-poll voting in Item 7 above.

77.   Item 36 includes an additional subsection to Item 7 above, subsection 73CI(4), to streamline proof of identity requirements where the voting day for a referendum is fixed for the same day as the polling for an election, and the voting official is reasonably satisfied of the identity of the voter who is seeking to cast a pre-poll election vote and pre-poll referendum vote in the same instance.

78.   Item 37 adds a Note to assist readers of section 73CJ(1), which deals with voters’ entitlement to vote by pre-poll ordinary vote. The note draws the readers’ attention to refer to Division 4, which deals with pre poll declaration votes, which is how voters who do not meet the identification requirements for ordinary pre-poll voting may vote.

79.   Part IVB of the Referendum Act deals with electronically assisted voting (telephone voting). Items 38 and 39 replicate the changes to the Electoral Act in Items 9 and 10 above to prevent the regulations for electronic assisted voting in a referendum requiring a voter to produce a proof of identity document (given that these voters already use an AEC-issued PIN as proof of identity when they vote).

80.   Item 40 provides that amendments to the Referendum Act made by the Schedule apply in relation to referendums the writs for which are issued on or after the commencement of this item (the day after the Royal Assent).

 

Statement of Compatibility with Human Rights

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

 

Electoral Legislation Amendment (Voter Identification) Bill 2022

 

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 rights from the International Covenant on Civil and Political Rights (ICCPR) has been considered:

• the right to privacy under Article 17; and
• the right to political participation under Article 25.

 

Article 17 - Right to Privacy

The Bill engages the right to privacy under Article 17 of the ICCPR because voters will be required to produce to an AEC officer a proof of identity document in order to cast an ordinary pre-poll or polling day vote in both federal elections and referendums. Voters will have their identity document compared against existing enrolment records, and the AEC officer may ask the voter further questions in order to identify the voter. This represents a change from the current requirements whereby AEC officers require voters to verbally identify themselves (name and address) to receive an ordinary vote.

Where a voter does not produce a proof of identity document, or provide an attestation of another voter who has an acceptable form of identification, they will be offered either a pre-poll declaration vote, during the pre-poll period, or a provisional vote (a form of declaration vote) on polling day. This will ensure that no voter is denied the opportunity to vote at a polling place if they do not have a proof of identity document.

The Bill is intended to reduce the potential for voter fraud and safeguard public confidence in the outcome and integrity of federal elections and referendums, in line with the ‘one vote, one value’ principle. 

The limitations are provided by law, and will not disproportionately impact on voters’ privacy as voters are already required to verbally identify themselves in order to vote. Proof of identity documents produced by the voter can only be used by the AEC officer for the purposes of identifying the voter. The Bill explicitly prohibits AEC officers from copying, scanning, recording or retaining a voter’s proof of identity document.

Questions an AEC officer may ask of a voter to establish identity are limited to the voter’s name, place of living, and matters shown on a certified or approved list of voters (for example, date of birth), which mirrors existing requirements in the Electoral Act.

When casting a declaration vote, the voter signs a declaration as to their identity and entitlement to vote. As this is an existing process under the Electoral Act, this Bill does not change the requirements for the collection, usage and storage of that information.

Where a voter chooses to establish their identity for the purposes of casting an ordinary pre-poll or polling day vote via attestation by another enrolled person with an acceptable form of identification - an alternative to producing a proof of identity document - the completed attestation form is to be held by the AEC consistent with Commonwealth privacy and electoral laws.

The limitations on the right to privacy proposed in this Bill are reasonable, necessary and proportionate to the legitimate end of reducing the potential for voter fraud and safeguarding the integrity of federal electoral events.

Article 25 - Right to political participation

The Bill engages the rights of citizens to take part in the conduct of public affairs under Article 25 of the ICCPR because of the requirement to present an acceptable form of identification prior to voting.

Any conditions applying to the exercise of rights protected by Article 25, such as voting, should be based on objective and reasonable criteria, and may not be suspended or excluded except on grounds which are established by law and which are objective and reasonable.

The amendments in the Bill, which are provided by law and set out objective criteria, are intended to protect against voter fraud and to ensure that there is public confidence in the federal electoral system. By using identity documents where they are presented, to find the name and residence of a voter on the Commonwealth Electoral Roll, the Bill helps avoid accidental mark-offs against the wrong person. This helps ensure that people are provided ballot papers correctly.

The Bill does not prevent a person from being able to vote. Provisions have been made in the Bill to ensure that no voter is denied the opportunity to vote for lack of identity documentation, by ensuring that a voter who does not meet the identification requirements will still be able to cast a pre-poll declaration vote (if during pre-polling) or a provisional vote (if on polling day).

Furthermore, the Bill requires AEC officers to inform the voter of the ability to cast a declaration vote. Voters who vote without identification will not be required to validate their identification after voting, as is required in some overseas jurisdictions.

By requiring voters who do not have proof of identity at a polling place to vote via declaration vote, the AEC can ensure that only the first vote received from such a voter is admitted to the scrutiny process. This is consistent with the ‘one person, one vote’ principle of democracy and supports sections 8 and 30 of the Australian Constitution, which provide that ‘an elector shall only vote once’ in each federal election.

Provisions in the Bill have also been made to ensure that the accepted forms of identification are sufficiently expansive (including hardcopy and digital forms) so as to be widely accessible by voters.  This includes prevalent forms of identity documents that are commonly carried by people in the normal course of their affairs, including driver’s licences, credit cards and debit cards. The digital versions of these products can be stored conveniently on phone ‘wallets’.

The limitation on the right of citizens to vote is proportionate to the legitimate end sought, and is reasonable and necessary in the circumstances. This is because the limitation concurrently supports the same right - by ensuring innocent voters are not the victims of impersonation, and are not subject to criminal accusations of multi-voting or denied the opportunity to vote once themselves in a federal election.

The limitation of the right is therefore consistent with Article 25 of the ICCPR.

Conclusion

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

Senator McGrath