Election Fraud and the AEC

Twenty-six years ago, MP Alasdair Webster lost his parliamentary seat of Macquarie by 164 votes. It led to a High Court challenge, the only time that fraud has been seriously pursued as determining the outcome in a federal election. The case collapsed, but nothing has changed since then to prevent the same voting manipulations.

Webster, the Liberal candidate had been the sitting member since 1984. His defeat by the ALP candidate Maggie Deahm was just one of the surprises of the 1993 election, deemed unlosable by Opposition leader John Hewson, and unwinnable by Prime Minister Paul Keating.

Webster lodged a ‘petition’ with the Court of Disputed Returns within the stipulated 40 days, making twentytwo allegations of irregularities. The most serious were that in between 100 and 370 instances, the roll was marked more than once for particular voters; and that people voted in the names of people who did not exist. After the election, a team of people had made house calls on a sample of five per cent of the residences listed for the Macquarie electorate to establish the voters who lived there. This “Habitation Review” used to be conducted by the Australian Electoral Commission to ensure the correctness of the roll, but is no longer used.

The private survey found false enrolments recorded to residences that did not exist, at addresses as vacant blocks of land, or that enrolled persons had died two years earlier. Some voters were found to be living outside the electorate. It was claimed that when the voting records were examined, the names of 140 registered followers of the Seventh Day Adventist church and 175 Plymouth Brethren had been crossed off as having voted. This, despite the fact that they had exemptions on religious grounds.

In the High Court, Justice Mary Gaudron dismissed all but three of the grounds for complaint. She pointed out that as S. 361(1) of the Commonwealth Electoral Act stipulated that “the Court shall not inquire into the correctness of any roll”, she would dismiss the allegations of illegal enrolment. However, as to the allegation that people voted in the names of people who did not exist, she found that:

Subject only to particularising the number of votes which are said to be involved, this is a matter which, if established, is capable of affecting an election result.

So she in effect, she sent Webster away to obtain and provide the details. At that point, things came to a shuddering end. The petitioner’s legal expenses had already amounted to $200,000, and significant costs would be incurred in collecting legally acceptable declarations in respect of each and every alleged fraudulent vote. He already had to meet the costs of the successful ALP candidate, $80,000. The Liberal Party did not contribute. He gave up.

An organisation, Australians for Honest Elections (now Vote Australia Inc) documented the Webster case as an example of vote fraud and mismanagement by the Electoral Commission. It claimed that before witnesses, AEC officers had admitted that more than 300 Macquarie voters had been issued the wrong ballot papers. But Webster did not learn that until after he had withdrawn his petition.

The division of Macquarie, which covers the Blue Mountains area and extends to the Hawkesbury and Nepean river catchments, has always been a knife-edge electorate. Since 1980 it has swung between Liberal and Labor seven times. In this last federal election it was the last seat to be declared; it was retained by the Labor candidate, Susan Templeman by 371 votes after preferences. In this highly contested electorate, what are the possibilities that fraud played some part in the result? The proliferation of pre-polling enlarged both the opportunities and the incentives and postal voting always opens the door to double voting. Of course I am not suggesting that fraud occurred, but the AEC can no longer assure the integrity of the rolls since it abandoned house to house checks.

After the 2016 federal election, 18,343 people were asked to explain why their names had been crossed off more than once. Some 7,743 allegations of voter fraud were referred to the Australian Federal Police, only 65 were investigated, and none was prosecuted.

Things haven’t changed much. In 2007, 20,633 letters were sent to apparent multiple voters; 18,037 or 87% responded; 1167 admitted to multiple voting of whom 955 or 82% were excused due to confusion, poor comprehension or age; 10 were referred to the AFP and absolutely zero were prosecuted.

Australia’s much-vaunted democracy, based on compulsory enrolment and compulsory voting, is entirely dependent on the honesty of individual declarations. At enrolment, and on voting.  In fact the system is wide open to deceit at almost every level. And especially in tight elections in marginal electorates, there is every incentive for unscrupulous operatives – or even pranksters –  to rort the system. (In one South Australian election a family voted 159 times as a joke).

It is now nearly a quarter of a century since a group of concerned citizens raised the risk of fraud at a public forum at the University of New South Wales in Sydney. That meeting resulted in the formation of the H.S. Chapman Society which, as a lonely voice, began to expose the denials of fraud as false. Henry Samuel Chapman was a lawyer and member of the Victorian Legislative Council who achieved fame for his successful defence of the American negro, known as Joseph, who had been charged with treason after the Eureka Stockade affair. In 1856 he devised the world’s first system of secure voting, now completely abandoned in Australia. Essentially, each ballot paper should be numbered, with the same number as against the voter’s name in the electoral roll. To overcome concerns that this could led to identification of an individual’s vote, a counterfoil with the same number may be provided and is kept separately. This has no record of the voting. but provides a paper trail of who voted, when and where, that can be examined by a court.  This has always been ridiculed as potentially breaching the secrecy of the voter’s intentions.

The Chapman Society argued that the problems go back to the 1984 amendments to the Commonwealth Electoral Act 1918  which set up the Australian Electoral Commission. They were masterminded by Labor MP Mick Young and Senators Robert Ray and Graham Richardson. It was Richardson (“Whatever it Takes”) who was quoted as saying that the changes “would ensure that Labor would stay in power as long as possible and make it as difficult as possible to change it.” The amendments led to the complete centralisation of power in the AEC.

A prospective applicant needs only to be 18 years old, an Australian citizen, resident at the current address for one month. The claim has to be witnessed by another voter. From April 16, 2007, evidence of identity has been required when enrolling but there is no real proof asked for, and far less evidence than to open a bank account. There is really nothing to stop a person enrolling with a fake name at a real address, a fake name at a fake address, under-age or as a non-citizen, with the real name of a voter now dead, or in an eligible real name deliberately at the wrong address (e.g. another electorate).

On receipt of a claim for enrolment, the AEC sends a confirmation e-mail to the declared address or, alternatively, a letter. But this cannot possibly check the authenticity of the voter since the check relies on the honesty of the recipient, and the response. An amendment to the Act in 2006 set the deadline for enrolment at 8pm on the same day the election writs were issued. But in 2010, the High Court ruled that voters should have the previous seven days before polling. As a result, the AEC was able to brag this year that a record number of new enrolments were registered in the seven days to April 18, three quarters of a million more than in 2016, with a surge of 70,000 new young voters.

When I asked the AEC media office a series of questions about these new enrolments, I received the following answers:

Q: How many of those newly enrolled voters were sent a confirmation by e-mail of printed acknowledgement letter?
A: Not readily available.

Q: How many of those new voter enrolments were actually checked by follow-up calls or enquiries?
A: See above comment.

Obviously, the volume placed unusual pressure on the electoral office; there was no way of knowing if any, or how many, were erroneous or fraudulent. Clearly the AEC has no idea how accurate the roll is. Yet it continues to dismiss concerns of fraud as a “straw man”. It has not changed its views from its submission to the Joint Standing Committee Report on the 2007 election, where it stated categorically: “Turning first to entitlement, it can be clearly stated, in relation to false identities, that there has never been any evidence of widespread or organised enrolment fraud in Australia.”

An honour system that would quickly bankrupt most businesses now extends to the polling. A person entitled to vote may vote several times under his or her name at different polling places, under the name of another person, or under fictional names. By presenting at a different division, a voter may be given an absentee vote, without a check on whether he or she has already voted in the correct division. All these practices are illegal, but prosecution is virtually impossible because no identification is required, and therefore the identity of the offender can not be proven. The AEC remains complacent, and no real enquiries are made, especially to clean the roll before the election. If any instances of deliberate deception should be later detected , it will be too late to undo the damage in a close contest which may have been decided by a handful of votes. In any case, as Alasdair Webster proved, the cost and complexity of gathering evidence in 40 days to mount a challenge to a declared result on the basis of alleged fraud makes it more than unlikely – impossible.

Furthermore, S.361 of the Act prohibits a Court of Disputed Returns from inquiring into the correctness of any roll. In Berrill’s Petition in 1976 the High Court clarified that if anyone wanted to challenge the electoral roll, they had to do it before the election, not after. Sir Ninian Stephen ruled:

Any electoral system which, instead of providing a means of putting the electoral rolls in order before an election, allows alleged errors in those rolls to ground an attack upon the validity of the subsequent election exposes to risks of dislocation the democratic process which it is designed to serve. Hence, no doubt, the provisions, commonly found in our election laws, for the prior adjudication of disputes as to the state of the rolls, such disputes being treated as wholly distinct from, and not the proper subject matter of, petitions concerning disputed elections and returns.

In the 2019 election, a record number of votes was cast in pre-polling, 4.77 million in 16 days. There is no suggestion that any of these votes was fraudulent, but the extended period provided a greater opportunity for cheating. The Chapman Society maintained that pre-polling votes did not qualify as votes by secret ballot because they were not cast in the same polling box, in the same polling booth in the same polling station, with the same security as ordinary votes cast on the one day.

The AEC hotly disputes this. A more telling criticism is that pre-polling votes do not reflect the same snapshot of issues, speeches, policies and polls as those cast on election day.

At the heart of the problem is the legal insistence on the absolute secret ballot. In striving for complete secrecy to protect the individual’s right to privacy and freedom from intimidation, the system has been opened to untraceable corruption. Because there is no way to identify each ballot paper with the voter who marked it, we have a system of fatally flawed perfection, with a real incentive to engage in undetectable and therefore unpunishable fraud.

Vote Australia Inc has published a 10-point plan to overcome Australia’s voting deficiencies. They range from demands for valid identification for enrolment and voting, to restoration of the Habitation Reviews that were stopped in 1995, to a master electronic roll replacing paper rolls, to ink pens instead of pencils in voting booths. Its boldest call is for the abolition of the Australian Electoral Commission and a return to the Ministerial responsibility in place from 1901 to 1984.

When the British government asked the Australian colonies in 1871 for advice on voting, the Earl of Belmore, Governor of New South Wales reported:

Impersonation is not happily put down. It is said, that, in regard to this offence, the Victorian system is better than ours, That impersonation is so often attempted in New South Wales arises in some degree from the lax way in which the returning and presiding officers deal with those detected in attempting to commit fraud. There is also an apparent unwillingness to prosecute offenders. The feeling is very prevalent that, after the election is over, all animosity should cease…

Nothing has changed. A first step for the Parliamentary Joint Standing Committee on Electoral Matters reviewing this election should be to insist that the integrity of elections depends on the accuracy of the roll. That demands proper fully checked identification on enrolment, and at voting.

In this computerised world, it should not be difficult for at least Centrelink and Immigration records to automatically check eligibility of applicants for enrolment. This would end the well-documented practice of migrants, unknowingly or deliberately, wrongly ticking the box as Australian citizens. In the past, as the Chapman Society has documented, returning officers who found false migrant enrolments were told to accept them, and were punished for raising the issue.

Enrolments should close at 8pm on the day the writs are issued. Then we could usefully start a conversation about matching votes to real people, and cleansing the roll. And end the joke: “Vote early, vote often.”

References

Webster v Deahm (1993) HCA 38; 116 ALR 223

Petition No S71 of 1993 under S. 353(1) CEA 1918

JSCEM October 1996 Allegation of Electoral Fraud: Supplementary submission

Berrill’s Petition:  Stephen, Gibbs, Mason (1976) 134 CLR 470

AEC Declaration Macquarie Division:

                        2-Candidate Preferred: Templeman (ALP) 48661

                                                              Richards (Lib) 48290