A CALL FOR LEGISLATIVE CHANGE: REMOVING SIGNATURE REQUIREMENTS FOR POSTAL VOTE APPLICATIONS

ECSA was the only electoral commission in Australia not to offer electors the option of applying for a postal vote online at its most recent election. The reason why ECSA has never offered online (or telephone) applications for postal votes is the legislative requirement followed for over a century across Australia obliging Returning Officers to compare the signature on the postal application with the signature on the envelope containing the postal ballot papers. In recent years every jurisdiction other than South Australia has updated their legislation to allow types of postal applications that do not contain a signature.

ECSA is aware of significant public expectations for government agencies to offer online services and also recognises the significant printing and postage costs involved in the paper-based postal vote application process. More crucially, as ECSA observed in 2018, with the decline in the timeliness of the postal service, significant numbers of postal applications were rejected and electors disenfranchised due to late arrivals of applications.

ECSA seeks legislative change to allow electors to apply for postal votes online and by telephone. Crown legal advice obtained since the 2018 State Election informed ECSA that the provisions of the Electronic Communications Act (2000) may be applied to the requirements for signatures within the Act, meaning that ECSA could already accept electronic applications for postal votes without pen-and-ink signatures. However, to avoid any uncertainty and to allow telephone applications ECSA requests that Parliament remove the requirement for postal vote applications to bear the signature of the elector, replacing it with a robust verification process to be determined by the Electoral Commissioner. This discretion to determine what verification system ECSA uses is important to allow ECSA the ability to adapt and evolve its processes to changes in technology as they occur, without having to return again to Parliament.

A CALL FOR LEGISLATIVE CHANGE: POSTAL VOTING TIMEFRAMES

Postal voting at the 2018 State Election was affected by a number of issues that highlighted the unsuitability of the legislated deadlines for applying for and returning postal votes, currently 5pm on the Thursday two days prior to polling day for the former, and 6pm on the Saturday after polling day for the latter. These issues included:

• 1,823 postal vote applications which arrived after the deadline and consequently could not be processed. No ballots were sent out to these electors and it was not possible to advise them in time for polling day to make other arrangements to vote.
• 1,232 postal ballots which arrived after the deadline for the return of completed postal votes. These votes could not be processed and hence did not count in the Election.

These numbers constitute in ECSA’s view a strong indication that the current postal service is not capable of meeting the timeframes for postal voting stipulated by legislation.

The deadlines themselves are vestiges of a bygone era. The two-day deadline to apply for a postal vote dates back to the birth of the current Act in 1985, while the seven-day deadline to return a postal vote has remained unchanged since 1955.

It is clear from Australia Post’s current delivery times that the two-day deadline to apply for a postal vote is too late to ensure ballot papers reach anyone other than metropolitan Adelaide electors in time to vote at the election.

After carefully considering the different solutions available, ECSA requests that Parliament move the deadline to apply for a postal vote. Two factors need to be considered here: Australia Post’s delivery times; and the interruption to postal services provided by the Adelaide Cup public holiday on the Monday prior to polling day. In light of these factors, ECSA recommends to Parliament that the only viable dates are those detailed in the Recommendation below.

Even with these revised timeframes, overseas deliveries are still unlikely to arrive in time. For this reason, ECSA recommends most overseas postal votes be replaced by the solution proposed in Recommendation 8.

A CALL FOR LEGISLATIVE CHANGE: ELECTRONIC POSTAL VOTING FOR OVERSEAS AND REMOTE VOTERS

Of the 712 postal voting packs ECSA mailed overseas at the 2018 State Election, only 48 votes (6.7%) arrived back in time to be counted.

The estimated delivery times for Australia Post’s standard international airmail service are not compatible with the calendar for postal voting in South Australia. These currently range from eight business days to London to 13 business days to Beijing, with an additional two business days for any address outside major metropolitan areas.

However, even using a much pricier express service to dispatch and return a postal vote from both ends, it is impossible to guarantee that a postal vote can make it across the world and back between the date ballot papers are printed and the deadline for votes to be received. This has been proven through the experiences of other electoral commissions, such as the NT Electoral Commission which in 2016 used Australia Post’s International Express service but only received 20.6% of its overseas votes back in time to be counted.

Electoral commissions around Australia recognise that long distance postal voting has increasingly become unfeasible and is failing to meet the needs of the large numbers of Australians travelling or residing overseas. ECSA shares the view of other commissions that a viable electronic solution is needed to replace long distance postal voting, not only for overseas electors but for those in similar circumstances in non-metropolitan interstate locations, as well as remote locations of South Australia.

Following assessment of the electronic solutions used in other jurisdictions, ECSA advocates a secure system for the electronic delivery and return of ballot papers at state elections modelled closely on the system used in New Zealand.

Under the New Zealand system, at election time electors overseas apply for and download their ballot papers from a secure website. After printing their ballot papers and then voting, electors must scan or photograph them and then upload the images back into the system. The electronic system enabling this process built by the NZ Electoral Commission prior to the 2014 general election, is subjected to rigorous independent security testing and accreditation before each electoral event. Since launching in 2014, this has become the preferred voting method for NZ voters overseas, with ‘electronic postal votes’ rising from 22,333 in 2014 (56% of overseas votes) to 41,221 in 2017 (67% of overseas votes). Although it continued to offer a traditional postal option in 2014 and 2017, after the 2017 general election the NZ Electoral Commission recommended to parliament that this option be removed for future elections on account of the rising number of postal votes arriving too late to be counted.

ECSA recommends South Australia learn from this experience and move directly to an electronic-only option for electors located overseas, making it optional for electors in non-metropolitan interstate locations, as well as remote intrastate locations.

ECSA does not advocate internet voting or the use of email to return ballot papers until the risks associated with voter privacy and IT security have been fully addressed and a national system implemented.

A CALL FOR LEGISLATIVE CHANGE: POSTAL VOTING FOR PRISONERS

Voting at state elections is compulsory for all South Australian electors, including residents of correctional facilities. It is the Electoral Commissioner’s responsibility to ensure all electors have the opportunity to exercise their democratic right to vote at elections.

Prior to 2018, the only legally available method for prisoners to vote was for the Electoral Commissioner to declare a prison to be a declared institution and have electoral officers visit it and issue declaration votes under section 83 of the Act.

Significant problems can arise with attempting to send electoral visitor teams into correctional facilities. During operational situations, electoral officers can be denied entry into prisons or be required to leave. Occasions have arisen at the past three state elections where electoral officers have been unable to enter a prison, or there has been insufficient time to take all votes. Additionally, at each state election staff have raised concerns about their personal safety visiting these facilities.

Commonwealth legislation provides that at federal elections prisoners can vote by post or a mobile team can visit the prison and take votes. During the 2016 federal election, all South Australian prisons requested prisoners vote by post. The same is planned for the next federal election.

In November 2017, the Electoral Commissioner requested that the then-Attorney General consider making a regulation to enable imprisonment to be considered a ‘reason of a prescribed nature’ as provided for under section 71(2)(b)(vii) of the Act to allow ECSA to provide postal vote applications to prisoners in correctional facilities instead of visiting them as a declared institution. This request was agreed to and a regulation made, however, this was limited to the state’s three maximum security facilities.

ECSA prefers to be able to provide postal vote applications to all eligible prisoners and hence requests that imprisonment be considered a ‘reason of a prescribed nature’ as provided for under section 71(2)(b)(vii). This measure has the support of the Chief Executive of the Department for Correctional Services.

A CALL FOR LEGISLATIVE CHANGE: HARMONISING THE REGISTER OF DECLARATION VOTERS

The register of declaration voters is an increasingly popular option for electors who are permanently prevented from attending a polling booth on polling day due to living with a disability, being a carer for someone who is seriously ill or infirm, living in a nursing home, religious beliefs or one of several other criteria.

ECSA is aware that the number of South Australians aged 65 and over is projected to increase significantly over the next decade, which will create a corresponding increase in the number of electors who may be eligible for and would benefit from becoming a registered declaration voter.

The register of declaration voters is managed by the Australian Electoral Commission (AEC), and South Australian electors who wish to apply to be registered are required to do so via the AEC website. ECSA is aware that electors have experienced confusion resulting from the different terminology used by the AEC, with the more intuitive term ‘general postal voter’ prescribed in the Commonwealth Electoral Act. Furthermore, certain criteria on the AEC’s application form are limited to federal elections only, namely those relating to voters serving a prison sentence of less than three years or those who are defence or Australian Federal Police employees serving overseas. ECSA is not aware of any reason why South Australia should not allow electors in these categories to apply to be on South Australia’s register.

To better support South Australian voters, ECSA believes that South Australia should amend its legislation to follow the example of other jurisdictions around Australia and change the name of its registered declaration voter program to ‘general postal voter’ program, and also harmonise the list of eligibility criteria with Commonwealth criteria.

A CALL FOR LEGISLATIVE CHANGE: ELIGIBILITY CRITERIA FOR PRE-POLL VOTING

Pre-poll voting has seen a surge in popularity in recent years in South Australia and across Australasia. To meet this growing demand, electoral commissions in other jurisdictions have greatly expanded their pre-poll voting services.

ECSA recognises that in addition to changing demands on people’s time on Saturdays, public expectations about voting have profoundly changed. Research has shown that electors want convenient options that allow them to fulfil their democratic duty and obligations under compulsory voting.

Key to this expansion of convenience voting is the removal of eligibility requirements for pre-poll voting. Four Australian jurisdictions (NT, Queensland, Victoria and WA) have removed pre-poll eligibility requirements in the past decade, while the ACT government is currently considering removing its requirements. ECSA’s 2018 Electors Surveys show broad support for removing pre-poll eligibility requirements in South Australia, with 58% of prepoll voters stating that people should not have to provide a valid reason to vote early.

Another important reason to remove eligibility requirements is ECSA’s inability to enforce compliance. As progressively more people vote early, the eligibility test has become problematic. The reality is that polling officials cannot test voters’ claims to be travelling or caring for an ill family member, and must simply accept them at face value.

Given the indisputable rise in demand for prepoll voting, mirroring national and international trends, the public’s support for removing eligibility requirements and the impracticality of enforcing compliance, ECSA recommends legislative change to remove the eligibility criteria for pre-poll voting in South Australia.

Recommendation 11.
That the Act be amended to remove eligibility criteria for pre-poll voting to allow any enrolled elector to opt for convenience voting at a pre-poll voting centre in the fortnight prior to polling day.

A CALL FOR LEGISLATIVE CHANGE: ENCOURAGEMENT OF VOTING ON POLLING DAY

In 2017, the government inserted into section 8 of the Act the requirement for the Electoral Commissioner to, “… promote and encourage the casting of votes at a polling booth on polling day.” At the time, the then-Attorney General stated in his second reading speech that the intention of this legislation was to “discourage pre-poll voting for convenience” and “curb the increase in pre-poll voting”. No other jurisdiction places this obligation on its Electoral Commissioner and ECSA recommends it be removed from the Act.

Recommendation 12.
That the Act be amended to remove the direction for the Electoral Commissioner to encourage the casting of votes at a polling booth on polling day.

A CALL FOR LEGISLATIVE CHANGE: ISSUING ORDINARY VOTES AT PRE-POLL VOTING CENTRES

The community expectation for votes to be counted and results announced promptly is challenged by the rise of convenience voting. All votes not cast on polling day are currently issued as declaration votes which cannot be counted until the week after polling day once rolls have been scanned and declaration envelopes transferred to each Returning Officer. As the number of declaration votes increases, the more likely it becomes that results in close elections will not be known for several days.

Casting a declaration vote is also complex and time-consuming for voters. Declaration votes take much longer to issue than ordinary votes and each voter needs to complete a declaration, which can be challenging for voters with literacy issues.

The status quo approach to pre-poll vote issuing and counting is no longer sustainable, with ever increasing numbers of declaration votes impacting on the speed of both the vote and the count. Unless action is taken, queues will be longer and election results delayed, creating frustration for candidates and voters, as well as criticism of ECSA.

A number of jurisdictions – the Commonwealth, NZ, the ACT, NT, Tasmania and Victoria - have resolved this problem by issuing the majority of pre-poll votes as ordinary votes and then counting these on polling day. ECSA recommends this approach be adopted in South Australia.

ECSA proposes to issue ordinary votes at pre-poll centres to all electors from the electoral district where the centre is located. Together with the greater number of pre-poll centres that will be established at future elections, this will ensure that the majority of pre-poll votes are issued as ordinary votes which can be counted sooner and faster. Electronic roll mark-off will ensure there is no associated risk of multiple voting.

This call for legislative change is closely associated with another Read more for all ordinary votes to be counted on polling day. Together these changes will ensure that a much greater proportion of the results are known on election night.

A CALL FOR LEGISLATIVE CHANGE: DECLARED INSTITUTIONS AND MOBILE POLLING

Almost a decade ago, in its Report on the conduct of the 2007 federal election, the Australian Parliament’s Joint Standing Committee on Electoral Matters (JSCEM) recommended that section 227 of the Commonwealth Electoral Act (CEA) relating to mobile polling be amended to remove all references to “remote divisions” and allow mobile polling at “... such locations and at such times as the Australian Electoral Commission deems necessary for the purposes of facilitating voting. For example, mobile polling ... should be able to be provided where there is likely to be sufficient demand for such facilities by homeless and itinerant electors, or in such other circumstances as warrant their use.” The Australian Government endorsed JSCEM’s two recommendations and successfully amended the CEA to open mobile polling up to all divisions and, as it explained in parliament, “... give the Electoral Commissioner flexibility rather than prescription ... the power to determine the places at which mobile polling can be conducted.”

ECSA is of the view that adopting both of the above federal changes would be highly beneficial at state level in South Australia. Giving the Commissioner the flexibility to be able to determine other appropriate locations where teams of polling officials can go would allow ECSA to meet the special needs of sectors of the community by attending centres catering to homeless and itinerant electors (as well as others that ECSA’s stakeholder partners alert us to). The Australian and Victorian electoral commissions (Victorian legislation also provides its Commissioner with complete flexibility to determine where mobile voting teams can visit) have reported that in addition to allowing them to reaching electors in difficulty, this flexibility also permits them to use mobile polling as an appropriate strategy to service voting needs at, for example, major sporting events and community gatherings that can interfere with an election period.

To achieve this outcome, ECSA seeks the following changes to legislation:

• remove from section 77 of the Act all references to “places within a remote subdivision” to allow the Electoral Commissioner to establish mobile polling booths at any location in the state which he or she deems appropriate.
• abolish section 83 of the Act, thereby eliminating declared institutions and electoral visitors which will be replaced by the more generic mobile polling teams covered by section 77.