Building Public Trust in the Public Sector

Address by Mr Ed Killesteyn, Electoral Commissioner

08 December 2009

I join you today during what are, politically, very interesting times. I'm often asked whether or not I think there will be an early election, to which my response invariably is along the lines of 'your guess is as good as mine'. What I can be certain of is that the staff of the Australian Electoral Commission (the AEC) are hard at work delivering enrolment and education services and preparing for the next federal election – whenever it may be.

This year – 2009 – the Australian Electoral Commission celebrates 25 years as an independent Commission. What does the creation of the Australian Electoral Commission have to do with Building Trust in the Public Sector?

The AEC was created in 1984 following the enactment of the Commonwealth Electoral Legislation Act 1983. That Act arose from the deliberations of the Joint Select Committee on Electoral Reform, created after the 1983 election, which conducted what was at the time the most wide ranging review of Commonwealth electoral legislation since federation.

The creation of the Commission came about directly as a result of a careful consideration of the risks associated with the involvement of political players in the administration of electoral processes. The Committee's First Report put it in the following terms:

The Committee sees great merit in the existence of an Australian Electoral Commission with a statutory basis and which is seen to operate independent of political influence. Accordingly, the Committee recommends the establishment of an Australian Electoral Commission as an independent statutory authority.

In his Second Reading Speech in support of the Bill which gave legislative effect to that recommendation, the then Special Minister of State, the Hon. Kim Beazley, Member for Swan, told the Parliament:

The Bill provides for the establishment of a truly independent Electoral Commission to be made up of a judge of the Federal Court of at least three years standing appointed by the Governor-General in Council from a panel of three nominated by the Chief Judge; The Electoral Commissioner, …and a permanent head of the Public Service or a person of equivalent status in a Commonwealth statutory authority. The Electoral Commissioner would be a full time executive officer of the Commission, while the other two members would be part time. … The Government believes that the changes proposed to our electoral machinery are both timely and sensible, yet at the same time they preserve the basic elements and broad principles which are already at the heart of the current system. On the other hand, the major overhaul undertaken will, we believe, improve the electoral administration; make the whole electoral process of enrolment and voting easier and simpler for the elector and ensure that we have an electoral process which is modern and free from any allegations or even possibilities of corruption or political pressures.

So the creation of an independent AEC had, at its genesis, a perceived need to provide the strongest possible basis for public trust and public confidence in the administration of electoral processes. As some of the conference's other panellists may attest, setting up independent agencies is not the sort of thing that happens readily, or often. Yet I would argue that it was this move that reasserted Australia's commitment to world's best practice in electoral administration, and provided reassurance to the Australian public that its federal electoral administrators would be institutionally separate from the executive Government.

The challenge faced by the newly established Australian Electoral Commission of course, was firstly to live up to the new expectations implied by the legislation, and secondly, to maintain public confidence in the way that it conducted its business. I am pleased to say that the AEC has done that very well; but it should not, and cannot, take public confidence for granted.

A good example of enhanced independence can be found in the way that redistributions of electoral boundaries are conducted. I use this example because of some misinformed comment about bias in the recent redistributions in QLD and NSW. Such commentary, at best based on a misunderstanding of the process, can undermine public confidence in the process and the AEC. Prior to the formation of the AEC, electoral redistributions could be, and sometimes were, voted down by either the House of Representatives or the Senate, largely because they were not considered to be politically expedient for the political players of the day.

Nowadays, independent Redistribution Committees led by the Electoral Commissioner are formed to propose new boundaries (following strict legislative criteria) which are put out for public review and objection. An augmented Electoral Commission headed by the Chairperson of the AEC conducts public hearings at which objections and comments on objections are heard and after considering the issues raised, it determines the final names and boundaries of electoral divisions. Parliament has no power of veto over the augmented Electoral Commission's decisions.

In large measure, the AEC's ability to retain public confidence comes about because of its independence. I cannot over-emphasise how vitally important such independence is to the AEC or to Australia's democratic model. Independence is central to the AEC being seen to be impartial, and therefore in being seen to be a non-partisan actor that can be trusted by parties and public alike. The AEC's institutional independence facilitates impartial conduct, while the AEC's behavioural independence can build public confidence in the organisation's impartiality.

If an election management body is to retain public confidence, it is essential that it both behave impartially, and be perceived to have done so. Public perceptions are ultimately beyond an election management body's control, but can nevertheless be strongly influenced, for good or ill, by the way in which the body approaches its work. The AEC seeks to achieve impartiality, and build public confidence, by behaving in accordance with four practical principles, all of which are implicit in the expectations of the AEC's architects, or in the manner in which the AEC is constituted by the Electoral Act: non-partisanship; decision-making in accordance with objective application of the law; parity of treatment of stakeholders; and pursuit of the overall objective of free and fair elections.

However, let me say that the quality of independence is not absolute, nor is it guaranteed. I would even go so far as to say that independence can also be a fleeting nature. An example of this became evident as recently as 2006, when Parliament legislated to remove the Commission's authority to make decisions regarding the location of divisional offices. The AEC must now seek and be granted Ministerial approval in order to relocate a divisional office outside the boundaries of an electoral division. This obviously has implications for the effective use of scarce resources.

International examples include the recent changes to the UK Electoral Commission where the number of Commission members was increased from 6 to 10, with the 4 additional members of the Commission being required to have had political experience.

It is important to reflect on why such changes occur. Independence is crucially dependent on the perceptions held by key stakeholders about how you do your job – especially where those stakeholders are both political parties and the public!

That leads me to pose a rhetorical question: "in the absence of a constitutional guarantee of independence, what does the AEC need to do to ensure that its important status as an independent electoral administrator is preserved?"

While there may be a number of different aspects we could pick up in answering this question, the two that I want to focus on, for obvious reasons, are good processes and transparency.

In March this year, I gave evidence to the Joint Standing Committee on Electoral Matters that an estimated 1.2 million eligible Australians are not on the electoral roll. At the end of September 2009, this figure had grown to over 1.3 million. This lack of participation is of major concern, especially when you consider that the number of unenrolled Australians is roughly equivalent to the number of electors in Western Australia, which has 15 electoral divisions (or 10% of the total number of members elected to the House of Representatives).

The decline in participation rates has not occurred overnight. It is not a sudden phenomenon. It has occurred over a long period of time. Enrolment numbers are climbing in absolute terms, but not at the same rate that the eligible population is increasing. We are not yet sure of the exact reasons why there are so many Australians not on the electoral roll, we do know however that there are likely to be a number of reasons – some we can mitigate against, and some, that I will come to later, with which the AEC and other electoral authorities continually struggle. We need to act decisively in order to protect the health of our democratic model from the effects of falling participation. It is our major work-in-progress and I liken it to the analogy of a frog in boiling water when describing the situation.

If you stick a frog in a saucepan of boiling water, it will immediately attempt to jump back out. However, if you put a frog into a saucepan of water at normal temperature and very slowly increase the temperature to boiling point, the frog will slowly adjust to the change in temperature but will eventually boil to death. It appears that electoral participation might be our frog: we have to make sure participation increases at the same pace as our population, or our democratic model might well be in hot water.

So here we are, nearly 100 years after the introduction of compulsory enrolment in 1911, some 85 years after compulsory voting was first introduced in 1924, and after 25 years operating as an independent Electoral Commission with real concerns about the effects of falling electoral participation.

We know that young Australians make up around 70% of our missing electors. 18 to 25 yr olds account for around 36% (or 430 000) of the missing, and 26 to 39 yr olds account for 34% (or 410 000) of the missing.

We know that the youth of today are highly mobile. They are proficient with modern technologies and use them as their preferred forms of communication.

They increasingly interact electronically, and they expect the AEC to interact with them likewise.

Let me read to you an email we received at the AEC in response to some correspondence asking an elector to update their enrolment details. It struck us as profound.

It obviously had the same effect on the Joint Standing Committee on Electoral Matters (JSCEM) when it inquired into the 2007 federal election, as they reproduced it in their report to highlight that what might have been good processes in 1984 are not effective processes today. In short, by using outdated processes, we are no longer meeting the needs of the community.

"I refer to a letter I received informing me that I must enrol. To start with, I am already enrolled. I would like someone to explain to me why I have to fill out a completely redundant piece or archaic bureaucratic red tape designed to keep some waste of space in employment. Join me as I guide you through your deluded and idiotic process.

1. Person changes their address details on their driver's license.
2. Said license details are provided BY ONE GOVERNMENT DEPARTMENT TO ANOTHER GOVERNMENT DEPARTMENT
3. The Government department that received the UPDATED INFORMATION then wastes paper, time and money sending documents out to the person who updated their information on the driver's license.
4. The person who has already updated their information with a GOVERNMENT DEPARTMENT is then expected to provide personal details.
5. To prove the validity of said details the person is expected to provide, wait for it, their driver's license. Now where did I see a driver's license, um, um, um, oh that's right, it's at step number 1.

To make things even more ridiculous, the person being subjected to an inconvenience and waste of their time is then not required to show it to anyone, but simply write the number on the form and put some squiggle representing their signature and post the whole monstrosity off in the envelope provided.

Are you starting to see how much this process looks like something out of F Troop? Surely with all of your ultra high tech whiz bang golly gee that's super equipment you can get your act together, or can you?………

So in closing, I look forward to you updating your processes so that changing your address on the electoral roll is automatically done when you change your details on your license. Failing that provide an online option. ………”

I look forward to a response.

P.S. How's the weather in Narnia today?"

That email illustrates the lack of good, modern processes and how this can influence the minds of electors and reduce confidence in the AEC.

Now, I need to make a point here about the AEC's processes. The processes the AEC follows in updating the Commonwealth electoral roll are prescribed by the legislation. We have no choice but to follow them.

But the legislation needs urgent surgery – the legislation needs to be modernised to allow the AEC to take urgent actions to address the declining participation rate.

State and Territory Electoral Commissions have recognised and are responding to the need for change. The NSW Parliament recently had legislation put before it to allow for automatic enrolment of 17 and 18 year olds, and automatic updating of details for persons who change address. They intend to do this using data that has been provided to other government departments. We need to proceed similarly at the Commonwealth level to ensure the integrity of the Commonwealth roll is maintained.

I spoke earlier about independence. Independence may well be an important asset, however, it also brings with it some challenges. One such challenge is the second area that I want to focus on today: transparency.

It is important for agencies like the AEC to work harder than most to ensure that independence is not used, or perceived by our stakeholders, as a shield against accountability.

Accountability is of particular importance given that the traditional accountability of government agencies to Ministers does not apply in the case of the AEC, which is not subject to Ministerial direction. Because the AEC is not subject to direction, accountability comes primarily through transparency.

One important accountability mechanism for the AEC is the JSCEM. It inquires into the conduct of every federal election, takes evidence from stakeholders, produces a report for tabling in Parliament, and makes recommendations based on its findings.

I must emphasise however that while the AEC sees itself as accountable to the JSCEM, the AEC is not subordinate to the JSCEM, nor does the JSCEM have the power to give the AEC directions on how it should perform its functions. This is a critical aspect of the AEC's dealings with the JSCEM, since it means that the AEC's independence is fully maintained. Nevertheless, the AEC always gives careful consideration to the views expressed by the JSCEM, while retaining the right to make its own judgements.

The law courts are also very important in ensuring accountability. This was demonstrated by the Court of Disputed Returns which ruled on a challenge to the result in the seat of McEwen at the 2007 federal election. The Court made some useful observations in respect of certain aspects of the conduct of the election in McEwen, and the AEC has reviewed procedures to take account of the views expressed in the judgement.

Engagement with our stakeholders is of paramount importance. The AEC works very hard to ensure that stakeholders understand why the AEC makes decisions and carries out its operations in particular ways. The AEC holds regular meetings with representatives of political parties. We accept that they have particular views, sometimes consistent with ours and sometimes opposing. We accept that political parties have an intense interest in how our electoral system functions and how the AEC goes about its business. We carefully consider the views expressed by the political parties in our meetings and through their representations to the JSCEM, while, again, retaining the right to make our own judgements.

I would like to finish by quoting from a speech given by Dr M. S. Gill, then Chief Election Commissioner of India, at the Golden Jubilee of the Election Commission of India in 2001. As Australia's Electoral Commissioner, I find the remarks inspiring. They essentially reflect what is expected for our AEC.

One objective test of fairness, is the fact that invariably at every election, the Indian voters have overthrown major political parties, and leaders and heads of governments. Another one is the acceptance of every election result by all parties, whether they win or lose.

I was amused to be asked a question in a neighbouring country: "Do they accept your declared results?"
They were surprised at my answer, that no Indian political party has ever shown such lack of faith in the Election Commission.
But this mutual confidence is not easy to achieve. It can only be obtained, by frequent dialogue between the parties and the Commission, and the Commission's ability to listen carefully, to the views and worries, of all those who are involved in the political process.

I have said for long, that this is a listening Commission, and we hold regular meetings with recognised political parties to discuss all issues. On an individual basis also, a cordial dialogue is always on. This is our mutual secret of success.
The Commission's power, and ability to execute faithfully the directions of the constitution, depends not so much on legal powers, but the faith and support of the Indian people. Along with that, equally essential, is our ability, to pass the critical observation of our ever vigilant press.

I believe that as long as we retain these two confidences, we do not have to worry about more powers. It is, therefore, our constitutional and moral duty, to stand absolutely dead centre, of the circle drawn around us, by the fifty recognised parties. They should be convinced in their hearts and souls, that we have no favourites.
Being human, we can be wrong sometimes, but our intention should never be impure.