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Australian Parliamentary Joint Committee on Human Rights |
Bills
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Purpose
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This bill seeks to amend the Commonwealth Electoral Act 1918 and
Referendum (Machinery Provisions) Act 1984 to require voters to present
identification documentation or an attestation from another enrolled person in
order to cast an ordinary
vote during the pre-polling period and on polling
day
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Portfolio
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Special Minister of State
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Introduced
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House of Representatives, 28 October 2021
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Rights
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Right to take part in public affairs; equality and non-discrimination
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1.4 This bill seeks to amend the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 to introduce voter identification requirements for pre-poll and polling day ordinary votes. The bill provides that for each person seeking to cast a vote at an election, a voting officer must request that the person produce a proof of identity document and ask whether they have voted before in the election.[2] The bill provides for a number of types of identification that can be shown in hard copy or electronic form, including government issued documents, documents from financial institutions and documents from Aboriginal and Torres Strait Islander land councils or bodies.[3] A voting officer must not make any copies or records of any identification shown.[4] After requesting proof of identity, a voting officer can ask questions of the voter to work out their full name or place of living, or both, and where not satisfied the voter is a particular person on the certified list of voters, the voting officer can ask additional questions about the matters on the certified list of voters to establish their identity,[5] for example their date of birth.[6]
1.5 If a person is unable to provide appropriate proof of identity, another enrolled voter would be able to attest to their identity.[7] The person attesting must provide their own appropriate proof of identity and complete an approved form which includes the attester's name, residential address, type of identification provided and name of the person they are attesting for.[8] This form can be completed with the assistance of the presiding officer or polling official, but the attester and voter must sign it.[9]
1.6 If a voter does not have the appropriate proof of identity and no one attests to their identity, a voting officer must inform them, during the pre-polling period, that they can cast a pre-poll declaration vote, or on polling day, that they can cast a provisional vote.[10] A provisional vote is a kind of declaration vote. Declaration votes are currently used for voters whose name or address cannot be found on the certified list or who have already been marked off as having voted. To cast a declaration vote, a voter fills out a separate declaration envelope at the polling centre declaring their identity and entitlement to vote. Currently, it appears that the declaration envelope requests additional details such as the person's date of birth, current permanent address, a driver's licence or passport number or confirmation of the voter's identity by another enrolled person, and signature.[11] Votes are then placed in the sealed declaration envelope and are subject to additional checks to verify the identity of the person casting the vote before it is admitted to the count. The process does not require the person to provide any further identification after casting the declaration vote.[12] Once admitted to the count, a declaration vote counts the same as an ordinary vote.
1.7 By providing for additional identification requirements for a person to cast an ordinary vote, the bill engages and may limit the right to take part in public affairs and the right to equality and non-discrimination.[13] The right to take part in public affairs includes guarantees of the right of citizens to vote in elections,[14] and is an essential part of democratic government that is accountable to the people. The United Nations (UN) Human Rights Committee has stated that the right to vote at elections and referendums must be established by law and may be subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote. States must take effective measures to ensure that all persons entitled to vote are able to exercise that right.[15] In this case a limit on the right to participate in public affairs may arise if a person is unable to cast a vote because of an inability to show identification or cast a declaration vote – or potentially if there is a lower voter turnout because of a perception that identification is required to vote. The right to take part in public affairs may be permissibly limited where a measure seeks to achieve a legitimate objective, is rationally connected to (that is, effective to achieve) that objective, and is a proportionate means by which to achieve it.
1.8 Further, as requiring proof of identity may have a disproportionate impact on particular groups who may face issues accessing identification documentation or having such documentation on them while voting (such as those who are homeless or Aboriginal or Torres Strait Islander people in remote communities), the measure engages and may limit the right to equality and non-discrimination.[16] This right provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.[17] The right to equality encompasses both 'direct' discrimination (where measures have a discriminatory intent) and 'indirect' discrimination (where measures have a discriminatory effect on the enjoyment of rights).[18] Indirect discrimination occurs where 'a rule or measure that is neutral at face value or without intent to discriminate', exclusively or disproportionately affects people with a particular protected attribute.[19] Differential treatment (including the differential effect of a measure that is neutral on its face) will not constitute unlawful discrimination if the differential treatment is based on reasonable and objective criteria such that it serves a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.[20]
1.9 A measure may be aimed at achieving a legitimate objective if it is one that is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the right. In order to demonstrate that the measures in this bill pursue legitimate objectives for the purposes of international human rights law, the statement of compatibility should provide a reasoned and evidence-based explanation of why the measures address an issue of public or social concern that is substantial and pressing enough to warrant limiting human rights.
1.10 The statement of compatibility states that the measures 'are intended to protect against voter fraud and to ensure that there is public confidence in the federal electoral system'. It states that by using identity documents this will help avoid accidental mark-offs against the wrong person, and help ensure that 'people are provided ballot papers correctly'.[21] The explanatory memorandum adds that the measure is intended to 'reduce the risk of electoral fraud (in the form of voter impersonation)'.[22] It also states that these measures were recommended by the Joint Standing Committee on Electoral Matters (JSCEM) in its reports into the conduct of the 2013, 2016 and 2019 federal elections. While the objective of protecting against voter fraud in general may be capable of constituting a legitimate objective for the purposes of international human rights law, the statement of compatibility does not address why the current laws are insufficient to achieve the stated objectives and why the measures address a pressing and substantial concern.
1.11 The JSCEM reports provide no evidence of, or concern about, a lack of public confidence in the integrity of the electoral system or any evidence of voter impersonation. The reports express some concern at multiple voting and mistakes in marking off the wrong person. The report on the conduct of the 2013 federal election states that '18,770 multiple marks (persons marked off the electoral roll more than once) were identified, with 10,671 of these being attributable to polling official error, 2,013 being instances of electors admitting to multiple voting, and 6,000 instances remaining unresolved'.[23] Nevertheless, the Australian Electoral Commissioner recently stated that the level of multiple voting is 'vanishingly small',[24] with the level of apparent multiple marks in the 2019 election around 0.03 per cent of the total vote.[25] The Commissioner has also stated that of those multiple votes, the vast majority are cast by 'people over the age of 80 or people who have English as a second language issues or who are confused about the act of voting'.[26] As such, further information is required as to how this measure seeks to address an issue of public or social concern that is substantial and pressing enough to warrant limiting the rights to public participation and equality and non-discrimination.
1.12 It must also be demonstrated that any limitation on a right has a rational connection to the objective sought to be achieved. The key question is whether the relevant measure is likely to be effective to achieve the objective being sought. The statement of compatibility does not clearly identify how the measures introduced will operate to achieve the stated objectives. In particular, no evidence has been provided as to how the measure will protect against voter fraud, and therefore increase public confidence in the electoral system. It is also not clear how voter identification requirements would be able to prevent people from voting multiple times at different locations. It is also not clear whether any modelling has been undertaken on whether the measure may impact voter turnout. Noting that the next federal election is required to be held sometime within the next year, if this measure were introduced before the election there would appear to be limited lead time to train polling officials in the new legislative requirements and educate the public on what is expected of them. As such, it is not clear if it may in fact reduce public confidence in the electoral system and discourage some voters from voting because of the perception that they cannot vote if they do not possess adequate identification documents. The statement of compatibility does not address how this will be managed.
1.13 Further, a key aspect of whether a limitation on a right can be justified is whether the limitation is proportionate to the objective being sought. In this respect, it is necessary to consider a number of factors, including whether the measure is accompanied by sufficient safeguards; and whether any less rights restrictive alternatives could achieve the same stated objective. In this respect, the bill introduces a number of safeguards that seek to ensure the ability of a person to vote. In particular, there are a number of different types of identification documentation that can be produced that the majority of voters are likely to have access to. Importantly, no voter would be denied a vote for not having an acceptable form of identification. Rather, where a voter does not have acceptable identification, another enrolled voter can attest to their identity, or they can cast a declaration vote. These are important safeguards that assist with the proportionality of the measure.
1.14 Nevertheless, there is concern about how the measure will operate in practice. As stated, requiring proof of identity may have a disproportionate impact on particular groups who may face issues accessing identification documentation or having such documentation on them when voting. A 2014 research report prepared for the NSW Electoral Commission on multiple voting and voter identification identified numerous challenges that certain groups may face in providing documentation, including people with no fixed address, people with disability, people of low-socio economic status, people from non-English speaking backgrounds, Aboriginal and Torres Strait Islander peoples and women escaping domestic violence.[27] The statement of compatibility does not identify that the right to equality and non-discrimination is engaged by the measure, and as such, it does not address what impact the measure will have on these groups. It is also unclear how accessible it is for some voters to cast a declaration vote, noting that it appears that there are requirements on the declaration envelope to provide additional information such as a driver's licence or passport number, and it is not clear whether a declaration vote would still be counted if not all of this information was provided.
1.15 It is also unclear whether other, less rights restrictive measures have been considered and determined to be ineffective to achieve the stated objectives. A significant number of the multiple votes identified in the JSCEM report on the conduct of the 2013 federal election were from polling official errors. The statement of compatibility does not identify why other measures, for example improving training for polling officials, would not be suitable to address this concern.
1.16 Further information is required in order to assess the compatibility of this measure with the rights to take part in public affairs and equality and non-discrimination, and in particular:
(a) what evidence exists that demonstrates that protecting against voter fraud and ensuring public confidence in the federal electoral system is necessary and addresses an issue of public or social concern that is pressing and substantial enough to warrant limiting the rights to participate in public affairs and equality and non-discrimination;
(b) how would voter identification requirements be effective to prevent people from voting multiple times at different locations;
(c) whether any modelling has been undertaken to assess whether this measure is likely to impact voter turnout;
(d) what information is required from voters casting a declaration vote and, where the voter does not provide all the requested information, how this will impact the counting of their vote;
(e) whether the measure is likely to have a disproportionate impact on particular groups, and if so, how such differential treatment is based on reasonable and objective criteria; and
(f) whether consideration has been given to alternative, less rights restrictive ways of achieving the stated objectives, such as greater training of polling officials to reduce inadvertent mistakes.
1.17 The committee notes that this bill seeks to introduce identification requirements for voters to cast pre-poll and polling day ordinary votes. Voters would be required to show an appropriate proof of identity document, have another enrolled voter attest to their identity, or cast a declaration vote in place of an ordinary vote.
1.18 The committee notes that as a matter of law, no voter will be denied a vote for not having an appropriate form of identification or attestation, as they would be able to cast a declaration vote. However, these additional requirements imposed before a voter can cast their vote engages and may limit the right to take part in public affairs and the right to equality and non-discrimination. These rights may be subject to permissible limitations if they are shown to be reasonable, necessary and proportionate.
1.19 The committee notes that while this measure seeks to protect against voter fraud, reduce inadvertent mistakes and ensure public confidence in the federal electoral system, it is unclear whether the measure addresses a pressing and substantial concern such as to amount to a legitimate objective for the purposes of international human rights law. Questions also remain as to whether the measure will effectively achieve its objectives; whether the measure will disproportionately impact particular groups; and whether alternative, less rights restrictive approaches have been considered.
1.20 The committee has not yet formed a concluded view in relation to this matter. It considers further information is required to assess the human rights implications of this bill, and as such seeks the minister's advice as to the matters set out at paragraph [1.16].
[1] This entry can be cited as: Parliamentary Joint Committee on Human Rights, Electoral Legislation Amendment (Voter Integrity) Bill 2021, Report 13 of 2021; [2021] AUPJCHR 130.
[2] Proposed section 200DI(1).
[3] Proposed section 4AB provides that a 'proof of identity document' is any of: a current Australian driver's licence; a current Australian passport; a current Australian proof of age card; an Australian birth certificate; a notice evidencing a person's Australian citizenship; a current identification card issued by, or on behalf of, the Commonwealth or State or Territory or an authority of the Commonwealth, State or Territory (including a Medicare card, pension card or health care card); an account statement issued by a local government body, utility provider or carriage service in the last twelve months; a credit or debit card issued by an Australian financial institution, or an account statement issued by an Australian financial institution in the last twelve months; a notice of assessment in the last twelve months in respect of a year of income; a notice issued by the Electoral Commissioner notifying a person of their enrolment; a document that relates to the affairs of a particular person, that specifies the person’s name and that is issued by an Aboriginal or Torres Strait Islander land council or land trust, or prescribed body corporate.
[4] Proposed subsection 200DI(6).
[5] Proposed subsections 200DI(2)-(3).
[6] Explanatory memorandum, p. 4.
[7] Proposed subsection 200DI(4).
[8] Proposed paragraph 200DI(4)(b).
[9] Proposed subsection 200DI(7) and proposed subparagraph 200DI(4)(b)(iii).
[10] Proposed subsections 200DG(3) and 229(6).
[11] Australian Electoral Commission, Approved form for pre-poll and absent-provisional declaration voting (2 February 2018) available at: https://www.aec.gov.au/about_aec/cea-notices/files/2018/pre-poll-absent-provisional-dec-vote.pdf.
[12] Statement of compatibility, p. 5.
[13] The bill also engages the right to privacy, however, it is noted that the statement of compatibility adequately explains how any limitation on this right is proportionate.
[14] UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996).
[15] UN Human Rights Council, General Comment No.25: Article 25, Right to participate in public affairs, voting rights and the right of equal access to public service (1996) [10]‑–[11].
[16] International Covenant on Civil and Political Rights, articles 2 and 26.
[17] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.
[18] UN Human Rights Committee, General Comment 18: Non-discrimination (1989).
[19] Althammer v Austria, UN Human Rights Committee Communication no. 998/01 (2003) [10.2]. The prohibited grounds of discrimination are race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Under 'other status' the following have been held to qualify as prohibited grounds: age, nationality, marital status, disability, place of residence within a country and sexual orientation. The prohibited grounds of discrimination are often described as 'personal attributes'.
[20] UN Human Rights Committee, General Comment 18: Non-Discrimination (1989) [13]; see also Althammer v Austria, UN Human Rights Committee Communication No. 998/01 (2003) [10.2].
[21] Statement of compatibility, p. 5.
[22] Explanatory memorandum, p. 2.
[23] Joint Standing Committee on Electoral Matters, Report on the conduct of the 2013 election and matters related thereto (April 2015) p. 112.
[24] Mr Tom Rogers, Australian Electoral Commissioner, Finance and Public Administration Legislation Committee Hansard, 23 March 2021, p. 170 and Mr Tom Rogers, Australian Electoral Commissioner, Finance and Public Administration Legislation Committee Hansard, 26 October 2021, p. 109.
[25] Mr Tom Rogers, Australian Electoral Commissioner, Australian Electoral Commission, Transcript, 6 December 2020, p. 15 in evidence to the Joint Standing Committee on Electoral Matters, Report on the conduct of the 2019 federal election.
[26] Mr Tom Rogers, Australian Electoral Commissioner, Finance and Public Administration Legislation Committee Hansard, 23 March 2021, p. 170 and Mr Tom Rogers, Australian Electoral Commissioner, Finance and Public Administration Legislation Committee Hansard, 26 October 2021, p. 109.
[27] Report prepared for the NSW Electoral Commission by Professor Rodney Smith, University of Sydney, Multiple Voting and Voter Identification, February 2014, pp. 20-21.
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