National Observer: Australia and World Affairs, No. 84, 2011

The demise of Australia’s secret ballot

by Amy McGrath OAM, PhD

 

The increased availability of pre-poll and postal voting has been shown historically to increase opportunities for widespread ballot fraud, warns Dr Amy McGrath OAM.

 

Australia no longer has a secret ballot system, according to the definition of the Australian Electoral Commission (AEC) itself. In its “electoral education resource” Democracy Rules, the AEC defines the secret ballot as follows: “Citizens vote in secret. A screen is provided to prevent others from seeing how they voted. The secret ballot allows people to vote without fear of intimidation from others and reduces the risk of bribery.”

Obviously, the August 2010 federal election did not qualify, by that definition, as a secret ballot election, as a substantial proportion of the votes cast were not cast under those conditions. About 1.8 million people cast their votes before election day —nearly a quarter of a million more than at the 2007 election. The AEC also reported a jump in the number of postal votes. (“Record number of early votes at pre-polling booths”, ABC News, August 20, 2010). The proportion of both postal and pre-poll votes has risen with each successive election, postal votes having doubled in number since 1993, and pre-poll votes having tripled.

Such votes do not qualify as being cast by secret ballot, as they are not cast in the same polling box, in the same polling booth, in the same polling station, with the same security, as are ordinary votes on the designated polling day. Furthermore, they are not votes cast which reflect the same snapshot of issues and news polls on the same day as is the case with ordinary voters on polling day.

Moreover, postal voters never cast their votes into any polling box, while pre-poll voters are often denied the opportunity to do so, because they often find a ballot box to be out of reach in understaffed or inadequately equipped pre-poll stations. Also, neither postal nor pre-poll voters have the faintest idea of what security exists regarding their ballot papers, until electoral officials begin counting them in their offices in the lead-up to election day. Moreover, ballot boxes certainly are no longer kept secure in police stations, as once was the case.

A great many voters are uneasy that fraud can most readily be committed on an organised scale in the area of postal voting. This unease was reflected in the conclusions of the Australian Government Electoral Reform Green Paper, authorised in September 2009 by Labor Senator Joe Ludwig as the then Special Minister of State. That document’s implications for postal votes, in particular, include the following admissions:

•      In contrast to ballots cast in polling places, secrecy cannot be guaranteed for postal ballots, which are completed in an environment uncontrolled by electoral administrators. It has been argued that there is a greater risk that postal voters “may be influenced or even intimidated by others”.

•      Postal voting, it has been contended, makes it “much harder to be certain that the person casting the vote is actually the person the vote is registered for”.

•      Besides, postal voting relies on the postal service to transmit ballot papers, and completed votes, within relevant deadlines. There have been instances of the disenfranchisement of voters, particularly in rural and remote areas, where infrequent postal services have slowed the postal voting process. (Reform Green Paper, p.164).

Very few people are aware that the issue of electoral fraud in our elections, or “bribery” as it was called once, has always hovered in the background of Australian political life since 1856. For example, our famous federal parliamentarian and prime minister (1915-23) Billy Hughes said, during the first Commonwealth Electoral Bill debate in 1902, “Bribery (fraud) is carried on to a greater or lesser extent at every election in every state in the Commonwealth.” But that issue tends to be dismissed, or derided, as the bad grace of losing candidates or parties, rather than taken up as a case of “where there is smoke there is fire”.

The first debate on whether to adopt postal voting began in the South Australian Parliament in 1856, the very year that Victoria adopted H.S. Chapman’s final resolution of a limited secret ballot voting process, which spread worldwide and came to be known overseas as the Australian Ballot. SA’s Parliament rejected postal voting as “entirely incompatible with the sanctity of the secret ballot” (F.M. McCain, Origins of S.A. Electoral system, 1972, p.49). However, this view was reversed in 1890, to permit seamen and shearers, authorised by certified witnesses, to cast postal votes despite objections that “it would open the door for combinations of people and unions to obtain a block vote” (House of Assembly: Hansard, South Australia, October 10, 1890, p.71).

The South Australian policy prevailed when the Commonwealth was formed. Postal voting was adopted, but curtailed briefly in principle during Alfred Deakin’s short-lived “Fusion” Government of 1909-10 because, in the words of James Hutchison (Labor MP for Hindmarsh, SA), “The grossest kind of fraud has occurred in connection with postal voting” (House of Representatives: Hansard, 1909, p.5647). Nevertheless, the Labor Party unwittingly instigated the opposite of what was intended, by liberalising the list of authorised witnesses to “increase the facilities to enable every one entitled to take advantage of this portion of the Act to do so”. Postal voting not only escalated. It ran completely out of control. Postmasters who had the right to issue postal votes were giving ballot papers to all and sundry. Doctors were too lenient in issuing medical certificates. People were exerting undue influence on others — such as women with their domestics, employers with employees, party supporters in nursing homes and hospitals parading as “flying angels (in white coats)”, party agents to the sick and infirm in homes, and Justices of the Peace among the worst everywhere.

When Senator George Pearce (Labor, Western Australia) spoke in favour of the total abolition of postal voting, his speech was as relevant then as it is today. He said: “Such canvassing is against the spirit of the Electoral Act. It was never intended to create a class of men who would go round canvassing for postal votes and trying to induce electors not to attend the polling booth” (Senate: Hansard, 1911, p. 4016).

Postal voting was re-introduced in 1918 for the benefit of servicemen. It was extended in 1949 by the Chifley Government, to allow those outside the state where they lived, or more than five miles (by the nearest practicable route) from any booth, or travelling on polling day, to apply for a postal vote. Fred Daly, MHR for the western Sydney electorate of Martin, bitterly opposed this. “It is an undeniable fact,” Daly announced, “that serious exploitation is taking place through unscrupulous persons obtaining votes by methods that are allowed by the Act. Divisions are now decided by postal votes. It is the only part of the total vote of the Commonwealth that can be manipulated, subverted and twisted” (House of Representatives: Hansard, 1949, p.1452; emphasis added to original).

The subsequent NSW Premier Joe Cahill was of the same view as Daly. He imposed restrictions that brought the number of postal votes throughout the state down to 435 by 1965, when the incoming Liberal Premier Askin “liberalised” them again, acting on the prevailing view that the conservative parties always won them.

Since that date there has rarely been any open debate in any Australian parliament about whether postal voting is desirable or not. Probably this is because the Australian Electoral Commission persistently claims that there is no fraud of any significance that could overturn the result of any election in any electorate, a denial that would cover postal voting.

Such denial was recently exemplified in the conclusion declared in the Joint Standing Committee on Electoral Matters (JSCEM) 2007 Report, based on the AEC’s controversial advice. The report concluded: “The years leading up to the 2007 election saw the creation and perpetuation of the mythical ‘straw man’ of electoral fraud. The straw man has been used to create and perpetuate an erroneous view that electoral fraud is commonplace and to overstate its potential effects. 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.”

This view was not supported by the former and present NSW Electoral Commissioners E.I. Dixon and W.R. Cundy, in their 1989 report to the State Government, wherein they concluded that there was indeed fraud, but that it was the very secrecy of the fraud which could defeat the secrecy of the ballot. “That the electoral system is open to manipulation is beyond question. Fraudulent enrolment is almost impossible to prevent.” Nor, if it occurred at election time, would it – or could it – all be checked.

Australia’s most eminent crime reporter and author, Bob Bottom, verified this view in 2001 in his analysis of recent Queensland elections, published as a lengthy foreword to the reprint of my 1995 book The Frauding of Votes? He had, he wrote, evidence “relating to Bribie Island which served to add credence to long-standing allegations that thousands of people may have been falsely enrolled in marginal electorates”. He said: “The names of bogus electors were on an electoral roll used for a mass letterbox delivery in the lead-up to the 1989 Queensland election.” This was verified by locals when Bottom appeared on a Channel 9 telecast. His analysis included doubts about the integrity of the late 1989 Queensland state election.

The AEC does not investigate fraud, and is not required to do so. Nor in my opinion, should it be required to do so, because it should not have to sit in judgement on its own work. Therefore we have no recent example of a judicial inquiry into postal voting fraud to compare with that conducted by Richard Mawrey QC, a legal scholar of 40 years’ standing, who sat as Electoral Commissioner for Britain’s High Court in a legal challenge, by two defeated teams of candidates, to the results in two wards of the 2004 Birmingham Council election. This poll had been conducted by postal voting on demand. The sanction to conduct elections by full postal voting on demand had been approved by all parties in the House of Commons in 2001. After a long, arduous enquiry, Mawrey announced (just before the 2005 general election) that this Birmingham Council fraud “would have been a disgrace to democracy in a banana republic”. This not only shocked the political world out of complacency, but also the media, where the story dominated the early days of the election, including the fact that Mawrey had faced “strong obstruction tactics” from the Labour Party to the judicial inquiry he was conducting.

Mawrey concluded:

“The principal problem with postal voting — whether on demand or otherwise — is that no means can be devised to guard against serious and organised fraud. The British government has tried — not very hard — to devise such a system, but the changes brought about in response to the election cases where I have exposed massive fraud have been minimal. In the Birmingham election case, I identified some fourteen types of fraud capable of being perpetrated with postal voting (though some were cumulative rather than free-standing) and in the Slough election case I dealt with the fifteenth type, that dear old fraud well known in all democratic systems, where I shamelessly purloined the Australian term ‘roll-stuffing’. The changes introduced by our government in 2006 dealt with one of the fourteen frauds but no more. The other thirteen and roll-stuffing, like John Brown’s soul, go marching on.” (Richard Mawrey QC, “Easy voting means fraudulent voting,” Quadrant, April 2010, p.52).

The 2007 report of a University of Liverpool academic, Dr Stuart Wilks-Heeg, entitled Purity of Elections in the UK, supported Mawrey’s view that postal voting should be abolished. E wrote:

“Cases tried since 2000 underline that the extension of postal voting has clearly enhanced the vulnerability of UK elections to large-scale fraud. The likelihood of such fraud occurring could and should have been predicted on the basis of evidence growing of proxy vote fraud during the 1990s. Moreover the potential for the political control of a major city council, or the outcome of a contest for a parliamentary constituency to be determined by postal votes, has been clearly demonstrated by recent fraud cases, most notably the offences considered by the Birmingham election court in 2005.” (Stuart Wilks-Heeg, Purity of Elections in the UK: Causes for Concern, 2008).

The conclusion of both Mawrey and Wilks-Heeg is that parties are wrong in their belief that postal voting will particularly favour them, or that it will boost attendance at the polls. They are concerned at the increase in fraud in British elections, which is signified by the current inquiry by police in 50 constituencies following last year’s May 6 general election.

My own conclusion is that so long as one of the two parliamentary parties has its power base in the trade unions built on postal voting — power that is related to amassing control of such unions – such voting should be confined to elections of union office-bearers. It should not extend into parliamentary elections, unless in remote areas and for emergency circumstances.

So long as we are disposed to consider ourselves a great democracy, we should ensure that our secret ballot is in every respect a secret ballot; and we should not jeopardise that secrecy by yielding to an ever-increasing number of postal and declaration votes that cannot by any stretch of imagination be considered to be secret. For we allow party members to scan lists of applications for postal votes, and electoral officers to scan them, without scrutineers present. Whatever checks may be in place, none of these checks can readily verify if the postal voter is a phantom or fraudulent voter, for no identification is required. Questions should nevertheless be asked urgently, not about this or that detail, but about the validity of the whole non-secret-ballot system.

As Mawrey reminded his Australia audiences during his 2010 speaking tour: “Easy voting is fraudulent voting”. Therefore serious questions should be asked about our easy voting system which is the most generous and prolific in the world. And an Electoral Ombudsman should be appointed to ask them.

 

About the author

Dr Amy McGrath OAM is president of Australia’s H.S. Chapman Society and co-founder of the Chapman Society UK. She is also author of two books, The Frauding of Votes? (1995) and The Stolen Election: Australia 1987, According to Frank Hardy (2005).

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National Observer: Australia and World Affairs, No. 84, 2011