Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021 [2021] AUSStaCSBSD 233 (24 November 2021)

• Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021
• Tabling of documents in Parliament6
• Schedule 1
• Schedule 2
• Committee view

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Electoral Legislation Amendment (Assurance of Senate Counting) Bill 2021

Purpose	This bill seeks to amend the Commonwealth Electoral Act 1918 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.
Portfolio	Special Minister of State
Introduced	House of Representatives on 28 October 2021

Tabling of documents in Parliament^[6]

Schedule 1

1.12 Item 1 of Schedule 1 seeks to insert proposed section 273AA into the Commonwealth Electoral Act 1918 (the Act) to provide that the Electoral Commissioner must arrange for an independent person or body to conduct a risk assessment of the security of the computer systems used to scrutinise the votes in a Senate election. Proposed subsection 273AA(3) provides that 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. Proposed subsection 273AA(4) provides that as soon as practicable after the Electoral Commissioner receives the report, the Electoral Commissioner must publish a statement of assurance stating that a security risk assessment of the computer systems has been completed.

1.13 Proposed section 273AC provides that the Electoral Commissioner must arrange for statistically significant samples of ballot papers to be checked throughout the scrutiny of votes for the election to assure that the electronic data used in counting the votes reflects the data recorded on the ballot papers. Proposed subsection 273AC(6) provides that, before polling day, the Electoral Commissioner must publish the methodology to be used for the sampling process and the process to be used for reconciling preferences. Proposed subsection 273AC(7) provides that, within 14 days after the return of the writ, the Electoral Commissioner must publish a statement setting out the outcomes of the ballot paper sampling process.

Schedule 2

1.14 Additionally, item 1 of Schedule 2, which commences 1 January 2023, seeks to insert proposed section 273AB into the Act to provide that the Electoral Commissioner must arrange for an independent and appropriately qualified person or body to conduct an assessment of whether the counting software used in a Senate election distributes preferences and elects candidates in accordance with the requirements of the Act. Proposed subsection 273AB(3) provides that the assessor must give a written report of the assessment to the Electoral Commissioner, including any recommendations in relation to the accuracy of the counting software and any variations required to improve or ensure its accuracy.

1.15 Proposed subsection 273AB(4) provides that as soon as practicable after the Electoral Commissioner receives the assessor's written report of the assessment, the Electoral Commissioner must publish a statement on the Electoral Commission's website stating that an assessment has been completed and whether the accuracy of the counting software is assured to the appropriate standard.

1.16 Proposed subsection 273AB(5) provides that not earlier than 7 days before the relevant Senate election, the Electoral Commissioner must publish a statement verifying that the version of the counting software to be used is the version that was assessed under proposed subsection 273AB(1).

1.17 Proposed subsection 273AB(6) provides that within 7 days after the return of the writ for the Senate election, the Electoral Commissioner must publish a statement verifying that the version of the counting software used is the version that was assessed under proposed subsection 273AB(1). Proposed subsection 273AB(7) provides that if the version was not the same, the statement must also include a description of the variations and the reasons for the variations.

Committee view

1.18 The committee's consistent scrutiny view is that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online. The explanatory materials contain no justification as to why none of the statements published by the Electoral Commissioner are required to be tabled in Parliament. The committee notes that, in relation to proposed subsection 273AB(7), the explanatory memorandum states that the publication of this information is intended to provide public confidence that any late changes would not impact on compliance of the count.^[7] The committee considers that amending the bill to require that statements by the Electoral Commissioner made under proposed sections 273AA, 273AC and 273AB are tabled in the Parliament would further promote transparency and accountability.

1.19 The committee also notes that there is no requirement that the Electoral Commissioner publish the reports provided by assessors under proposed subsections 273AA(3) and 273AB(3). In relation to requiring the Electoral Commissioner to publish a statement under proposed subsection 273AA(4), but not the report itself, the explanatory memorandum states:

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.^[8]

1.20 While noting that the reports under proposed subsections 273AA(3) and 273AB(3) may contain sensitive information, it remains unclear to the committee why a copy or summary of the reports, with any sensitive information removed, could not be published or tabled in the Parliament.

1.21 The committee therefore requests the minister's advice as to whether the bill can be amended to provide that:

• statements published by the Electoral Commissioner under proposed subsections 273AA(4), 273AC(6) and (7) and 273AB(4), (5) and (6) are tabled in the Parliament; and

• reports given to the Electoral Commissioner under proposed subsections 273AA(3) and 273AB(3) are published on the Electoral Commission's website and tabled in the Parliament, subject to any redactions genuinely required to ensure that sensitive information is not inappropriately disclosed.

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[6] Schedule 1, item 1, proposed sections 273AA and 273AC; Schedule 2, item 1, proposed section 273AB. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[7] Explanatory memorandum, p. 16.

[8] Explanatory memorandum, p. 7.