25 February 2014

Voter Identification

The report [PDF]  by the Queensland Parliament Legal Affairs and Community Safety Committee on the Electoral Reform Amendment Bill 2013 (Qld) - noted in a recent post - considers voter identification requirements that will disadvantage some demographics.

The Committee in endorsing the Bill  recommends that -
  • the Attorney-General and Minister for Justice include a reasonable range of documents (both photographic and non-photographic) in the Electoral Reform Regulation to ensure that voters have the best chance of fulfilling the proof of identity requirements and are able to cast their vote without incident. 
  • the Electoral Commission of Queensland provides reasonable training to electoral officers in relation to both proof of identity requirements and assisting voters with the declaration process.
The policy objectives of the Bill are to amend the Electoral Act to both "ensure the opportunity for full participation in Queensland’s electoral process" and "enhance voter integrity and voting convenience" through -
  • facilitating electronically assisted voting, particularly to ensure access to secret and independent voting for blind and vision impaired voters; and voters who require assistance because of a disability, motor impairment or insufficient literacy; 
  • changing particular requirements in relation to postal voting to make it more convenient and accessible for voters; 
  • in recognition of how-to-vote cards as an important resource for voters—providing the cards are to be made available on the Electoral Commission of Queensland (ECQ) website and granting the ECQ power to refuse to register a card if it is satisfied it is likely to mislead or deceive a voter in casting their vote; and 
  • implementing a proof of identity requirement to vote in a state election in a non- discriminatory way that reduces the potential for electoral fraud. 
The Bill proposes a proof of identity requirement in order for people to cast a vote when attending a polling booth. The Department's prior Discussion Paper stated -
Given that Queensland would be the only jurisdiction to require proof of identity on polling day, there is a risk that the requirement would lead to voter confusion. Also, as there is no specific evidence of electoral fraud in this area, introduction of proof of identity requirements could be considered a disproportionate response to the risk. 
The Department indicated that acceptable forms of identification, including non-photographic forms of identity, will be prescribed in the Electoral Regulation and that voters who do not provide some form of proof of identity will be permitted to make a declaration vote.  The range of proof of identity documents will include:
  • the voter information letter issued by the ECQ to persons included on the electoral roll; 
  • a document evidencing electoral enrolment; 
  • a current driver licence; 
  • a current Australian passport; 
  •  recent account or notice issued by a public utility; 
  • an identification card issued by the Commonwealth or a State as evidence of the person’s entitlement to a financial benefit. 
 In noting criticisms the Committee refers to issues raised in submissions
  • ‘it is a solution in search of a problem’;
  • the need for the law has not been demonstrated and its implementation is not reasonable or proportionate;
  • comparisons to similar issues with voter identification laws in the USA and expression of general caution through to serious concern in relation to overseas experience;
  • longer waiting times to vote, leading to greater disaffection with electoral process;  
  • significant responsibility imposed on electoral officials and their potential exposure to conflict;
  • concerns for particular voters who may have difficulty supplying proof of identity and who may already be socially or economically disadvantaged, 
  • concerns the provisions may impact disproportionately on the poor and oppressed, concerns for migrants, transient workers, homeless, people with a mental illness, people with an intellectual disability, people in rural and remote areas, elderly, young people, itinerants and the Indigenous;
  • need to ensure the rights of those citizens and their dignity is not compromised under the proposed arrangements;
  •  eligible voters may be discouraged from voting in the first place and some declaration votes may not be counted given the potential for the returning officers to regard themselves as not satisfied the elector was entitled to vote;
  •  care needs to be exercised to ensure identification requirements are easily available to people with a disability;
  • change is contradictory to Government objective of red tape reduction;
  • voter confusion in first year and differences with federal voting requirements;
  •  need for easily accessible and widely available identity documents;
  • already sufficient checks and balances;
  • • undemocratic as it will unfairly discriminate against the disadvantaged;
  • waste of resources and resources better diverted elsewhere;
  • conflicts with international obligations to which Queensland aspires to comply;
  • dent the optimism that people with disability are beginning to experience with their hopes and aspirations of the National Disability Insurance Scheme;
  • changes reflect Queensland’s ‘majoritarian’ and unicameral parliament;
  • voter identity useful for providing a degree of voter integrity in emerging democracies where fraud is undeniably more prevalent;
  • the lack of evidence of voter fraud in Queensland. 
The  joint submission by the Aboriginal & Torres Strait Islander Legal Service (Qld) and Qld Association of Independent Legal Services Inc referred to the risk of voter fraud, commenting that
There is insufficient empirical evidence of voter fraud to justify a proof of identity requirement for voters. The 2012 State General Election: Evaluation Report and Statistical Returns published by the Electoral Commission of Queensland does not include any evidence of, or reference to, electoral or voter fraud. Further, the Electoral Reform Green Paper: Strengthening Australia’s Democracy, published by the Commonwealth Government in September 2009, reported that there were only 10 cases of multiple voting in the 2007 Commonwealth government election referred to the Australian Federal Police for investigation.
That was consistent with evidence by the Acting Electoral Commissioner
I am on record as stating at the estimates that at the last state election I referred one person to the Queensland Police Service for multi-voting.  
The Australian Human Rights Commission  submission stated -
A basic tenet of human rights is the test of proportionality, that is, any action taken to address an issue must be proportionate to the risk of infringing on rights. Given the lack of evidence of voter fraud and the risk of disenfranchisement of high numbers of Aboriginal and Torres Strait Islander voters, I believe these laws may not satisfy this text and could potentially be considered to be an imposition to the exercise of the rights of Aboriginal and Torres Strait Islander people. 
Potential disenfranchisement of certain voters was highlighted by many submitters to the inquiry, with the report noting that those voters  include  Indigenous people, migrants, transient workers, homeless, people with a mental illness, people with an intellectual disability, people in rural and remote areas, elderly, young people and itinerants. The committee considers that a declaration vote may not remedy the situation in many instances, with for example individuals with low literacy being likely to struggle with completing a valid declaration vote then a simple ballot paper.

The report notes expressions of concern by the Human Rights Legal Centre (HRLC) and AHRC regarding the practical effect of proof of identity requirements -
  • up to 40,000 Queenslanders could be disenfranchised and be subject to a disproportionately harmful impact;
  • many Aboriginal and Torres Strait Islander people face difficulties in obtaining formal identification and may be unable to meet the proposed requirements;
  •  lack of a birth certificate prevents people from being granted other forms of identification;
  • as a broad indicator of the potential impact of these laws––it is estimated only 38% of Indigenous people in some Queensland local government areas have a driver licence compared to an average of 90% of the rest of the eligible population;
  • Aboriginal and Torres Strait Islander people attempting to vote may feel intimidated by the requirements to fill in extra paperwork (casting a declaration vote) and at being treated differently to other voters;
  • may also have the effect of making people without identification feel further marginalised and reluctant to complete the process.
There were also expressions of concerns in relation to whether certain young people and those who are homeless have access to non-photographic identification, such as a public utility notice, or have retained information, such as the voter identification letter issued by the ECQ.

The Depatment's response argued that a homeless person who is homeless may enrol to vote despite having no fixed address, if they could provide an Australian driver’s licence, Australian Passport; or  signed declaration by a person on the Commonwealth electoral roll attesting to the person’s identity. I wonder whether many homeless people have a current Australian passport.

The report notes that
It is less likely that a homeless person would gain voter enrolment status through providing one of the first two forms of identification. Accordingly, if the person does not possess their voter identification letter (due, perhaps, to theft, water damage or an absence of mailing address), they will be enrolled, but potentially unable to submit an ordinary vote through a lack of proof of identity. 
The Bill provides for a declaration vote in the case where an individual is unable to provide sufficient proof of identity. The process for a declaration vote is set out in the Act and section 125 provides that a declaration vote will be accepted for counting only if the ECQ is satisfied of the person’s entitlement to vote.  In its letter to the Committee, the Department identified some of the matters the ECQ would consider in deciding whether a declaration vote made at a polling booth is to be counted: 
  • … that the declaration envelope has been signed in accordance with the Act 
  • that the signature purports to be witnessed by the officer who issued the certificate; 
  • that the voter is enrolled for the division; 
  • that the voter has not previously voted in the election.
The report refers to concerns expressed by the Bar Association of Queensland, i.e.
  • some eligible voters will be discouraged from voting at all; 
  • that for some their votes will not be counted given the potential for the returning officers to regard themselves as not satisfied that the elector was entitled to vote.
The Committee considered that latter  concern "casts some doubt on whether the declaration vote is an adequate safety net for those who are not able to provide sufficient proof of identity on election day". The AHRC concurred, arguing that  there is greater opportunity for error, particularly for those with less advanced literacy, when required to complete more complex paperwork than just filling in a ballot paper. Those without identification may have an increased likelihood of their votes not being counted, even if they proceed to the alternative declaration vote process.

The Castan Centre for Human Rights Law advocated for birth certificates to be available free or at a reduced cost in order for everyone to be able to have access to such an essential identity document, stating that if the Bill retains a requirement for proof of identity, those documents should include forms of identity possessed by the majority of Indigenous Queenslanders, such as ‘Proof of Aboriginality’ documents (a signed document bearing the seal of an Aboriginal organisation).