Inside Story

Sprucing up the horse and buggy

New recommendations for electoral reform are a step in the right direction, but the pace continues to be perplexingly slow, writes Peter Brent

Peter Brent 8 July 2009 2203 words

EVENTUALLY the Australian electoral machinery will catch up with twenty years of technological change, but parliament’s latest report shows it could take some time.

The Joint Standing Committee on Electoral Matters has been around in different forms since 1983, and after every election it examines how it all went and makes recommendations for future improvements. A year ago, when JSCEM’s inquiry into the 2007 federal election was in its early stages, I wrote some nice things about the committee for Australian Policy Online. But I suggested that institutionally the committee seemed stuck in old partisan battles when a new frontier beckoned. Now, the committee’s report on the last election has been tabled.

Like its predecessors, JSCEM has a government majority. Its fifty-three recommendations are all supported by the Labor members, with the Coalition side dissenting on eight of them. The Greens member, Bob Brown, has also written a dissenting report. Note that the recommendations are only that: some can easily be adopted by the Australian Electoral Commission but most require legislative changes. And of course the government can ignore recommendations it doesn’t like.

So how does this report stack up? Let’s get the depressing news out of the way first. The rules on closing the electoral roll and on provisional voting were areas the Howard government used its Senate majority to change, controversially, in 2006. (More about these changes here and here.) The outcome of this inquiry is that Labor (and hence the committee) wants to return, with some adjustments, to the situation that prevailed before 2006, while the Coalition doesn’t. This is like arguing over Beta and VHS when the answer is DVD.

Pre-2006 actually means returning to 1984, the last time the Commonwealth Electoral Act was revamped. In that horse and buggy era voting was paper-based and the branches of the AEC were not linked by computer, let alone the internet. We should have moved way beyond these discussions by now.

But let’s not dwell on the bad stuff. One interesting set of recommendations concerns the treatment of pre-poll votes, and more generally indicates a shift in attitude towards what is sometimes called “early voting.” The proportion of people voting before election day – either by postal vote or by casting a pre-poll vote at an office of the AEC – grows with every election, and in 2007 it came close to 20 per cent. These facilities were never intended to accommodate lifestyle choices; instead they exist for the benefit of people who really can’t make it to a polling booth on election day. But with more people working on a Saturday, and a generally more mobile and active population, the demand for early voting continues to grow.

Does this matter? Do we care if fewer people vote on election day? Elections serve intangible as well as tangible functions. They legitimise the way our country is governed and give people ownership of decisions made by government. There is a ritualistic aspect as well; as Australians we are bound together by our attendance on that day, at the local school (or wherever), where we line up in the company of others and do our civic duty. From rich and poor, from any walk of life, each vote counts the same. It is an equaliser.

The fewer people partaking in this human event the less effective this role is. In many wealthy democracies (poor countries don’t generally have early voting facilities, for fear of vote-buying) the trend is similar. Previous JSCEM reports have discussed this issue but done little about it. This one has made a firm decision: the world is moving in a particular way and the AEC should facilitate it. So they are recommending that early voting be made more convenient.

In the case of electors who will be outside their electorate but still in Australia on election day, the law currently says that if they can make it to a polling station in another electorate they must do that and lodge an absent vote on the Saturday; they do not qualify for a pre-poll vote. The committee recommends changing this so that these people can lodge a pre-poll vote. It also recommends that fears for personal safety be grounds for pre-poll voting.

Furthermore, pre-polls will now (if the recommendations are followed) be treated like ordinary votes and go straight into the ballot box, rather than sit in an envelope until election day. And where possible preliminary scrutiny of these and postal votes – determining whether they are valid – will take place before election day. Both of these would mean a more accurate and timely result on election night.

There are recommendations for changes to postal votes as well. A postal vote application will no longer need to contain signatures of the applicant and a witness, which will allow applications to be lodged online. (This applies to postal vote applications only, not votes.) This is twenty-first century thinking and is to be commended.

With postal votes themselves, for several elections there has been a growing problem regarding Australia Post postmarks. For a postal vote to count, the date on the postmark of the envelope must not be after election day, and yet in some cases Australia Post date-stamps an envelope up to several days after it was put in a post box. In the past this has seen some votes not being counted even though they were posted in time.

JSCEM’s solution is for the AEC to ignore the date stamp altogether and rely on the date given by the elector on their postal vote certificate. Well, it is recommending that “the government consider it” – JSCEM is not sure this is the correct way to go. But this is a serious problem that needs to be addressed.

The report suggests welcome steps towards automatic enrolment. Currently, the AEC receives data from many federal, state and territory agencies, which it uses to identify the millions of electors who have moved house. But the process is one-sided: the commission has the power to use this information to take people off the electoral roll, but it cannot put them onto the roll at their new address. I’ve developed some proposals to take this further.

Not only does it make no sense for the commission not to use this data, but many people assume they do and that enrolment details are automatically updated. As evidence of this the AEC presented the committee with a copy of an amusing letter (Sample: “Are you starting to see how much this process looks like something out of F-Troop?”) it received from a baffled elector.

The committee recommends that the AEC selects agencies with sufficiently rigorous proof of identity standards and allows electors already on the electoral roll to opt in to automatic changes. For example, if you move house and inform the Motor Registry you would then be able to tick a box that says “update my enrolment details.” This is an excellent idea, but it should go further and make opting out the option. In fact there is no reason why it should not be fully automatic without any permission needed.

Another step into the twenty-first century is the recommendation that the AEC sets up an enrolment website at which currently enrolled voters can change their details, with strong safeguards to ensure integrity. This fine idea would presumably be accompanied by an advertising campaign to make sure voters use the facility.

One recommendation that represents a step back into the previous century is to once again allowing non-sequential voting, including the infamous “Langer vote.” That is, the committee (or the Labor majority at any rate) has recommended a return to the “savings provision” that existed until 1998, whereby a voter who numbers every square (or all but one) but not sequentially has their vote counted up to the point where the preferences become non-sequential. Albert Langer was the activist who at the 1993 and 1996 federal elections advocated an option for electors who wanted to vote for a minor party or independent but did not want to give their preferences to a major party. They could circumvent the spirit of the legislation by numbering every square but including the same number several times, so “exhausting” their vote before it went to a major party. In effect, this was a way of turning the compulsory preferential vote into an optional preferential vote, or OPV.

The rules were changed in 1998 to disallow Langer-voting, or indeed any kind of non-sequential numbering of squares. Some 90,000 electors had their votes rejected at the 2007 election because, while they numbered every square (or all but one), their numbering contained sequencing problems. Under the pre-1998 rules, these votes would have been counted.

The main reason Labor wants to once again allow non-sequential votes is that the vast majority are not Langer votes but are accidentally spoilt, and most people who accidentally spoil their ballots are Labor supporters – disproportionately people with low education levels and migrants with poorer English skills. It is in Labor’s electoral interests to catch their votes.

The Coalition members of JSCEM dissented from this recommendation, describing it as a “have one’s cake and eat it” option that purports to retain full preferential voting but allows de facto OPV. They have a point. Labor wants to enfranchise probable Labor voters but not give Green voters the option of consciously exhausting their preferences, as would happen under OPV.

THE PARTIES’ ATTITUDES to option preferential voting have come full circle. Once it was a reform Labor wanted to introduce because it could split the Coalition vote when the two sides ran three-cornered contests. But since from the 2001 federal election the Green vote has been high, most of them are people who would otherwise support Labor and most of them, about four in five, put Labor ahead of the Coalition on the ballot paper. Under full compulsory preferential voting Labor gets most of these votes back.

In those jurisdictions that operate under OPV, New South Wales and Queensland, about half the votes exhaust before getting to a major party. Because of the high Green vote, it is now Labor that has most to fear from OPV at the federal level. A quick back-of-envelope calculation of the 2007 election suggests that OPV would have halved the new government’s majority.

The main argument against OPV is that it is a step towards first-past-the-post voting. But this is not much of an argument, because under FPP (which is indeed an awful system) electors don’t have the option of allocating preferences. Under OPV, of course, they do. The best argument for OPV is that it would slash the number of informal votes. In fact, if ticks and crosses were also allowed, the informal rate would drop from about 5 per cent to about 2 per cent, enfranchising hundreds of thousands of voters.

But OPV is also more philosophically defensible than compulsory preferential voting. Australian law says that people must turn up to vote on polling day (or register an early vote) but it is perfectly okay for them to put in a blank ballot paper if they wish. But, under CPV, if they do choose to vote then they must number every square. They can’t just vote for the person they want, but have to rank the rest. This is unduly coercive.

Another objection to OPV is that it can lead to a candidate being elected with less than half the vote. But if we take informal votes into consideration then that is currently happening in some (very close) seats. Under OPV it can be said the winner had a majority of those who chose to allocate preferences. The introduction of OPV at the federal level would be a very fine thing, but it is not likely to happen any time soon.

JSCEM puts forward many other recommendations: to harmonise enrolment procedures between jurisdictions and ensure national consistency in roll management across jurisdiction, to develop enrolment targets for states and territories and to make voting more accessible using more mobile booths. It recommends the reintroduction of electoral education for Indigenous Australians, and proposes a financial incentive for schools and educational institutions to gather new enrolees (opposed by the Coalition, possibly because young people tend to vote left of centre). Bob Brown’s dissenting report, advocating laws ensuring truth in advertising, seems worthwhile.

On that key issue of enrolment, however, JSCEM is too timid. Automatic enrolment –under which information from various government agencies is used to update the roll – should be opt out rather than opt in, or even compulsory. After all, enrolment itself is compulsory in this country. Continuing political party involvement in the postal vote application process is a disgrace – as the AEC made clear in a submission to JSCEM (see the section beginning at the bottom of page 34) – and should end.

But this report contains some modest, presumably tripartisan recommendations for modernising our electoral administration. We await with interest their fate in parliament. •