Orr, Graeme --- "Rescuing Ballots: Innovation and ATSIC Elections" [1996] AboriginalLawB 17; (1996) 3(80) Aboriginal Law Bulletin 10

Rescuing Ballots: Innovation and ATSIC Elections

by Graeme Orr

The complexity of electoral law governing ATSIC elections, especially given the lack of experience of many part-time and casual electoral officials with what is a relatively new set of polling procedures, is bound to lead to some electoral errors. In tightly and often passionately fought elections, errors and disputes tend to lead to challenges and litigation. Where such errors appear to have possibly affected the result of an election, it is traditional for courts of disputed returns to order re-elections. But re-elections - such as the recent Mundingburra State by-election in Queensland - are both costly and often unsatisfactory. Being divorced from the general poll of which they were meant to be a part, they can lose themselves in microcosmic battles, and like any argument re-contested, they can become jaded, distorted or just plain ugly contests. Further, only if the original winner succeeds at the re-election can complaints of `illegitimacy' against the victor be avoided.

However, the litigation in Australian Electoral Commission v Towney & Ors ((1994) 51 FCR 250), offers a refreshingly modern acceptance of the scope of new technologies to avoid the cost and legitimacy problems of ordering such re-elections. Returning officer error at the 1993 ATSIC Council election led to ballots at a number of booths in the Wirawongam ward of the Wagga Wagga region to be rendered invalid (similar errors occurred in the Northern Rivers ward of the Coffs Harbour region).

To be eligible to vote at an ATSIC election, Indigenous people must not only be on the general electoral roll and declare to the returning officer that they have not voted before in the same election, but must also make a declaration of their Aboriginality. This is done in writing, before a returning officer and a community liaison officer, and then the voter is given a ballot paper. Because complaints are occasionally made that people who are not identified as Aboriginal by any Aboriginal community may have voted, there needs to be a procedure to retrieve from the count any such votes if the complaints are accepted. Thus, each individual ballot needs to be potentially traceable to a valid claim to vote. The procedures for the 1993 election required a declaration of Aboriginality on a form attached to the voting envelope to be signed by the voter. The voter then sealed the vote in the envelope.

The procedure is similar to postal voting procedures at elections generally. Obviously, such procedures open the possibility of secrecy being lost; although with proper administrative safeguards, votes should never be unfolded or looked at until separated from the identifying voter envelope. (In fact, the potential for abuse of secrecy of postal votes was the ground for an unsuccessful claim by the Australian Labor Party in its 1995 challenge to the Greenslopes Queensland State election result.)

Not surprisingly, whether due to an oversight or because of an instinctive fear of a lack of secrecy, two returning officers, on the day of the poll in Wirawongam, separated declaration forms from voting envelopes as they were deposited in the ballot boxes under their control - keeping the forms in a separate pile. As a result, all the potential votes in their booths (50 and 7 respectively) were technically invalid and excluded from the count, since no particular vote could, if necessary, be traced to either a voter on the roll, or a valid declaration. Those potentially formal votes could have affected the result of what was a tightly-fought regional election. Under traditional electoral law practice, the judge would have had no alternative but to declare the poll void, and order a re-election. This would have cost the AEC $60,000, not to mention the cost to the candidates and community, as well as having incidental effects on ATSIC governance.

However, scientific processes are now such that the declaration slips could be re-matched with the voting envelopes to which they belonged, through analysis and matching of perforations and glue. This could be done quickly, accurately, and relatively cheaply by a private forensic document firm. The AEC, and 7 of the 11 respondents (who were all successful candidates in the original, flawed count), supported the use of this process, but needed to petition the Federal Court under its powers `to make any order, or give any direction ... necessary or convenient' in resolving ATSIC election disputes (as per cl 10(1)(j) of Schedule 4 to the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth)). The petition was heard together with similar petitions relating to the errors in the Coffs Harbour regional election (Love v Williams and AECv Williams).

Fortunately for the advocates of this salvage method, they encountered one of the Federal Court's more pragmatic judges, Foster J, who was willing to embrace this innovation, despite the urgings of several of the respondents who wanted a more cautious approach and a fresh election. The original elections were thus saved, and all the otherwise disenfranchised votes could be taken into account (provided they expressed a formal preference).

The case is likely to prove a milestone, albeit a technical one, as electoral law and processes evolve, slowly, towards embracing the technological revolutions that this country is witnessing. Already the case has been cited, approvingly, in another ATSIC election challenge, Australian Electoral Commission v Landy &Ors ((1994) 54 FCR 440). In that case, Lee J was willing to order similar procedures to save votes at one booth. It will doubtless be relied upon as a novel precedent in challenges to other more general elections in Australia. Recognising the significance and novelty of the litigation, and its potential to save other elections, Foster J agreed that the AEC should pay all the respondents' costs on an unusually generous indemnity basis, as if the case had been a public interest proceeding (reported separately in (1994) 54 FCR 383).

The experience of the 1993 ATSIC elections raises wider issues and problems. Aside from revealing a need for the AEC to put more effort into training part-time and casual returning officers, and tighten procedures, the unsatisfactory and not altogether secret nature of the balloting process needs review. Short of establishing a Roll of Aboriginal Electors (an expensive undertaking, which would open up significant controversy, as well as individual disputes, about whether a comprehensive definition of `Aboriginality' could - or should - ever be possible), votes will have to be potentially traceable. More secure means of protecting individual voters' secrecy, especially important given the relatively small and tight-knit nature of Indigenous communities, should be created. These could involve the actual ballot being placed in an extra, unidentified envelope, or an encoded numbering system of ballots being used, whereby centralised administrative staff would match details from the declarations to numbers on the actual ballots issued, before the count proceeded.