The Constitutional Role of Electoral Management Bodies: The Case of the Australian Electoral Commission

A Facilitating Electoral Democracy

Much of the work of the AEC can be classified as ‘facilitating’ electoral democracy. Here I will focus on two areas: the conduct of polling, and supporting the electoral participation of voters and candidates.

The conduct of polling is at the core of the AEC’s facilitation role. It is a huge organisational challenge: polling places must be found and booked, ballot boxes delivered, staff recruited and trained. The Commission’s workforce swells from around 800 staff to more than 87 000 workers during polling. ⁴⁵ And, in a system of compulsory voting, there are legitimate expectations that voting should be a relatively easy experience. The Electoral Act provides for—and the AEC delivers—numerous voting options, including ordinary voting, absent voting, interstate voting and postal voting. In addition, the AEC runs mobile polling booths which visit hospitals, nursing homes, prisons and remote regions in the lead-up to polling day. Special voting arrangements are made for overseas voters, Antarctic voters, deployed Defence Force personnel and electors who are blind or have low vision. The execution of such a highly complex task inevitably results in errors, ranging from the relatively minor (failure to correctly record that an elector has attended a polling place) to the more serious (such as the loss of 1370 ballot papers at Western Australia’s 2013 half-Senate election). In close contests, these errors may be the subject of petitions to the Court of Disputed Returns; otherwise, the AEC is accountable for electoral maladministration to the Parliament and the public.

The AEC supports the electoral participation of voters by working to ensure that they are equipped to exercise their voting rights. The Commission produces a range of text, image and video resources in discharging its responsibility to educate Australians on how to enrol and to vote. ⁴⁶ The AEC also maintains the electoral roll, an instrument that is ‘pivotal to the electoral system’ as it provides a definitive statement of who is and is not entitled to cast a vote. ⁴⁷ To help foster electoral inclusion, the Commission develops specific resources for people from culturally and linguistically diverse backgrounds, Aboriginal and Torres Strait Islander peoples, people with disability, homeless people and young people. ⁴⁸ When it comes to supporting candidates, the AEC receives candidate nominations and publishes detailed guides to help participants navigate the nominating process ⁴⁹ and learn about the rules on constitutional disqualification. ⁵⁰ Since 2018, the AEC has administered a scheme whereby candidates are asked to furnish information about their citizenship status so as to demonstrate their eligibility to be chosen as a MP. ⁵¹ The scheme was introduced following a series of High Court decisions that ruled several sitting MPs ineligible due to dual citizenship but failed to resolve uncertainty about the operation of the Constitution’s disqualification rules. It fell to the AEC—’outside the courts’—to foster transparency and compliance by implementing this administrative measure. ⁵²

The capacity of the AEC to facilitate electoral democracy depends on the powers and functions conferred on it under the Electoral Act. The statutory framework is largely supportive, as shown by the emphasis on providing multiple voting options, but it also presents challenges. The AEC has identified the highly prescriptive nature of the Electoral Act as an impediment to innovation and the efficient delivery of services. ⁵³ While the Act’s many detailed statutory provisions protect the Commission by limiting discretion and providing clear (even painstaking) guidance on how functions are to be performed, ⁵⁴ they also limit the AEC’s ability to improve electoral processes as they channel even technical procedural changes through the legislative process. ⁵⁵ The lack of financial autonomy is another factor as it restricts the Commission’s ability to expand electoral participation and trial new initiatives. These legal and budgetary constraints do not prevent innovation entirely, as shown by the AEC’s recent experiments with queuing practices and electronic certified lists. ⁵⁶

The work of the AEC in conducting polling and supporting electoral participation demonstrates its critical role in the practical realisation of electoral democracy. Notwithstanding the legislative and budgetary challenges that the Commission faces in this role, it retains the trust of the Australian public and an international reputation for professional, nonpartisan and independent performance. ⁵⁷ As we will see, however, the AEC’s capacity to protect electoral democracy faces more significant challenges.

B Protecting Electoral Democracy

Any assessment of the AEC’s part in protecting electoral democracy must begin with an acknowledgement that it does not perform this role alone. Multiple institutions are involved, including JSCEM and the courts; in other jurisdictions, anti-corruption bodies also play a part. As for the AEC’s contribution, it helps to safeguard the fairness and integrity of the electoral process in numerous ways, including through the select functions that I focus on here: participation in the redrawing of electoral boundaries (‘redistributions’), the counting of votes, the administration of the financial disclosure scheme and rules on political communication, and engagement in judicial proceedings and law reform. In what follows, I emphasise the ways in which the Commission plays an effective protective role and some of the factors that support that. I also draw attention to the challenges it faces, and these echo concerns expressed in the wider literature: namely, adequacy of powers, lack of budgetary independence and enforcement difficulties.

The drawing of electoral boundaries is, as Ackerman and Tushnet recognise, an activity where incumbents have an obvious interest: the location of a boundary may not only affect a candidate’s share of the vote but could also serve to shelter them from meaningful competition into the future. ⁵⁸ It is therefore a classic example of a function that should arguably be exercised by a ‘fourth branch’ institution that is appropriately insulated from political interference. In Australia, federal redistributions have always been undertaken by an independent commission but for many decades remained vulnerable to partisan interventions. The government retained an ability to decide when to initiate a redistribution process, while the Parliament could refuse to adopt proposed boundary changes. ⁵⁹ Over time, however, the capacity for such interventions was removed and what was once a highly partisan exercise is now an independent, bureaucratic affair that enjoys cross-party support. ⁶⁰ The long and detailed process sees a four-member redistribution committee (comprising the Electoral Commissioner, the State Australian Electoral Officer and two senior public servants), and later an ‘augmented’ body (the initial committee plus the Chairperson of the AEC and a senior federal official), develop a proposal for revising the state’s electorate boundaries. ⁶¹ The Act prescribes guiding criteria and establishes rough equality of enrolments in each electorate as the primary consideration. Political parties may make submissions throughout the process, but the final determination is made by the augmented body. Its decision is conclusive and may not be challenged before a court. ⁶² In this sense, a redistribution is very much a function that is performed ‘outside the courts’.

The counting of votes is another function that arguably belongs in the hands of an independent ‘fourth branch’ institution given the conflict of interest that other actors, such as government party officials, would bring to the task. At federal elections, AEC officials conduct the ‘scrutiny’ in accordance with detailed statutory provisions and in the presence of scrutineers representing the candidates’ interests. ⁶³ The most sensitive scrutiny function is the determination of the formality of ballot papers. ⁶⁴ Counting officers follow the Electoral Act’s formality rules, as interpreted by the courts and summarised in AEC manuals, ⁶⁵ and in more complicated cases may seek assistance from senior management or legal counsel. ⁶⁶ An official’s decisions to admit or exclude ballot papers from the count may, in a close race, become the subject of a petition to the Court of Disputed Returns. ⁶⁷ The possibility of court review is reassuring from an accountability perspective, but the superior counting experience of officials, combined with the political sensitivity of the task, renders it appropriate that formality determinations are mostly made ‘outside the courts’. ⁶⁸

As we have seen, one of the concerns with ‘fourth branch’ institutions is that they are vulnerable to government manoeuvres that weaken their independence and effectiveness. We might expect such institutions to be particularly exposed where they make decisions that directly affect the fortunes of political parties. It is striking, therefore, that electoral official determinations on redistributions and vote counting are typically accepted by politicians without complaint. What might explain this? Several factors are at play. First, Australia has a long history of professional, nonpartisan election administration. Second, the AEC itself bears important markers of institutional independence and owns a reputation for impartiality. ⁶⁹ Maley singles out the requirement that the Commission be chaired by a judge or former judge, the appointment of respected, senior public servants to the other commissioner positions, and the absence of political party representation on the Commission. ⁷⁰ Third, the AEC enjoys high levels of public confidence. This has been fostered by rigorous and open scrutiny of the AEC’s work through JSCEM, and the Commission’s commitment to conducting its functions in a transparent manner. ⁷¹ Finally, the prescriptive nature of the Electoral Act is helpful: discretion is exercised within clear parameters, rendering officials less vulnerable to allegations of bias.

The example of the AEC demonstrates that an electoral commission can perform an effective ‘protective’ role even in the absence of the constitutional entrenchment envisaged by Ackerman. ⁷² It suggests that, just as we should not expect that entrenched commissions will be immune from political attacks, nor should we assume that statutory bodies necessarily face an erosion of their functions and influence. In fact, the Commission’s public standing is such that any attempt by legislators to alter redistribution arrangements to their own advantage would likely meet with popular disapproval. ⁷³

In other areas, however, the AEC’s capacity to safeguard electoral democracy is hampered by inadequate powers and a lack of financial autonomy. This is apparent with respect to the Commission’s work in administering rules on funding and disclosure and political communications. My analysis suggests that fourth branch institutions are in many ways only as effective as the laws they are charged with enforcing and reinforces concerns expressed in the literature that a lack of budgetary independence may affect how an agency exercises their powers.

The AEC administers the funding and disclosure scheme set out in the Electoral Act. ⁷⁴ Political parties are required to lodge annual financial disclosure returns that show the details of donations received that exceed the disclosure threshold of $14 300 (2020–2021). The AEC then publishes this information on its website. The Commission also conducts compliance reviews in which the accuracy and completeness of selected annual returns is verified. Where a mistake is found, the AEC asks the entity to amend their return and, if they fail to do so, the Commission can investigate and if appropriate refer the matter to the Commonwealth Department of Public Prosecutions.

Turning to political communications, the AEC administers rules on the authorisation of electoral material, and misleading content. The authorisation rules require candidates, parties and others to attach identifying details—such as names and addresses—to advertisements and other materials. ⁷⁵ Where authorisation is lacking, the Commission can take a range of actions, from issuing a warning (requesting that the offending material be rectified or removed) to seeking an injunction, pursuing a civil penalty, or making a referral to the police. The Commission can take similar actions in the event that it discovers content that ‘is likely to mislead or deceive an elector in relation to the casting of a vote’. ⁷⁶ This prohibition applies only to statements that might mislead a voter about the process of casting a vote, but not to claims that might influence the formation of a voter’s preference. ⁷⁷

By administering these two sets of rules, the AEC plays some role in protecting electoral democracy. In overseeing financial disclosure, the Commission fosters transparency. This may help combat corruption by discouraging donors from giving money for corrupt reasons, and by enabling the public to monitor possible connections between donations and policy outcomes. ⁷⁸ The AEC’s administration of authorisation rules similarly fosters both transparency and accountability, while its policing of misleading content helps shield electors from attempts to deceive them about the voting process.

However, the AEC’s protective role in both areas is modest. In many respects, it fails to address the potential threat to electoral democracy posed by money (such as the sale of access to politicians) and misinformation. Two factors operate to limit the AEC’s protective role here: adequacy of powers and resources, and reluctance to use existing powers.

The ‘lackadaisical’ laws governing federal political finance impose firm constraints on what the AEC can do in the service of protecting electoral democracy. ⁷⁹ The disclosure thresholds are so high that parties are able to receive substantial amounts in anonymous donations, and disclosures are not timely, in some cases coming 19 months after the money was received. ⁸⁰ The Commission lacks sufficient investigative powers and resources in this area, rendering it unable to take strong action when parties prove unwilling to comply with disclosure rules. ⁸¹ The AEC can refer the most serious cases to the police for investigation, but prosecutions are extremely rare, slow moving and penalties are small. Similar challenges are faced with political communications. The AEC is powerless to act against election material that misleads voters about a party’s policy positions or intentions, as the ‘Mediscare’ and ‘death tax’ messaging did during recent federal elections. Further, social media content presents special compliance challenges, both in terms of identifying the source of offending material and in working with companies to take it down. ⁸²

Some state laws point to the possibility of a bigger role for electoral commissions in these areas. Electoral law in NSW imposes stronger limits on donations and expenditure, ⁸³ prescribes higher penalties and grants the NSW Electoral Commission more extensive enforcement powers including the ability to withhold public funding where a party has failed to meet its disclosure obligations. ⁸⁴ South Australian law, meanwhile, provides for oversight of the content of political communications: the state’s Electoral Commissioner may request that an advertiser withdraw an election advertisement and/or publish a retraction where, in the Commissioner’s view, the advertisement contains ‘a statement purporting to be a statement of fact that is inaccurate and misleading to a material extent’. ⁸⁵

The conferral of similar powers on the AEC would enable it to play a stronger ‘protective’ role. However, it could also expose the Commission to partisan attacks and weaken its reputation for independence and impartiality. This is particularly the case regarding the power to police the content of election advertisements: the Australian Electoral Commissioner recently argued that such a power would ‘involve us making value judgements about candidates’ and parties’ material, and it could lead to accusations of bias by the AEC’. ⁸⁶ As noted earlier, the Commission is trusted to make decisions on politically sensitive matters in part due to its longstanding reputation for professionalism and nonpartisanship. Were that reputation to be weakened, we could see partisan political actors begin to challenge the fairness of electoral administration across the board. Perhaps alert to this risk, the AEC has so far preferred to work within its existing set of powers to address concerns with political advertising, including by developing a ‘Stop and Consider’ advertising campaign urging voters to check whether information is reliable, current and safe.

The second challenge concerns the AEC’s willingness, or lack thereof, to use the full powers available to it in addressing disclosure and communications breaches. The infrequency of prosecutions for breach of disclosure requirements has already been noted. The Commission has a range of powers available to address authorisation breaches, but in practice it handles most cases by issuing a warning. ⁸⁷ And the AEC drew criticism on polling day in 2019 for refusing to remove, or seek an injunction against, Liberal Party signs that appeared to mislead voters as to how to cast their vote. Those signs, displayed at polling booths in two electorates, bore AEC colours (purple and white) and told voters in Mandarin that the ‘correct’ way to vote was to record a first preference for the Liberal Party. ⁸⁸ The AEC determined on the day that the signs did not breach the relevant provision (s 329) as it had been judicially interpreted; a unanimous decision of the Court of Disputed Returns later found the opposite. ⁸⁹

The ‘fourth branch’ literature notes the risk that oversight agencies will be overly cautious in the use of their available powers for fear of destabilising their relationship with government. While there are many reasons why the AEC might not use certain powers, its institutional setting makes it vulnerable to this kind of ‘regulatory capture’. ⁹⁰ It is in the difficult position of overseeing the conduct of parties that it ultimately reports to through the JSCEM process and depends upon for its funding. The dependence of the AEC on the parties has the clear potential to inhibit the Commission’s willingness to exercise its full enforcement powers. This is especially the case at high-stakes moments, such as during election campaigns and on polling day, where Commission intervention could affect the reputations or even electoral fortunes of candidates and parties. One option here, as envisaged by some ‘fourth branch’ scholars, is to enhance the Commission’s budgetary independence by entrenching its funding arrangements. ⁹¹ Another option is to engage a parliamentary committee or independent review body to oversee resourcing and make recommendations about it. ⁹²

The AEC also faces practical challenges in utilising its full set powers. When complaints about political communications are received during an election campaign, or on polling day itself, it is important that they be addressed quickly and efficiently and this points to non-judicial avenues. As the AEC has said in defence of its approach during the 2019 campaign, it is ‘fully prepared, willing and able’ to use all of the powers available to it, but that ‘in almost all cases, a faster way to obtain compliance’ is by issuing warnings without having to resort to the courts. ⁹³ Meanwhile, the Commission’s failure to remove the misleading signs that imitated AEC colours should be placed in context, namely, the difficulty of encountering a novel set of circumstances on polling day and needing to make a rapid determination as to whether a breach has occurred. Of course, against these considerations should be weighed the possibility that a greater willingness to seek court injunctions and refer matters to the police could help to deter future attempts by parties to push the law to its limits.

Moving away from administration matters, the AEC has the potential to protect electoral democracy through its engagement in judicial proceedings. The Commission’s commitment to neutrality, however, limits its contribution here. The AEC proceeds on the assumption that the electoral laws it is charged with administering are valid and does not view it as appropriate to present arguments on constitutional validity where those laws are challenged in the courts. ⁹⁴ This position is taken even where the challenged laws limit the franchise ⁹⁵ or potentially advance partisan self-interest. In court proceedings, the AEC typically confines itself to giving expert evidence about electoral processes and addressing questions of statutory construction. ⁹⁶

The AEC plays a larger protective role through its engagement in law reform, most prominently through its contributions to JSCEM. But, again, there are firm limits to the impact it can have. The Commission is ultimately not able to guard against the enactment of laws that undermine the fairness and integrity of the electoral process. On the contrary, it is bound to administer them. The most that the AEC can do is argue against problematic proposals, although in practice it tends to steer away from taking positions on electoral policy. For instance, when the Howard government proposed an early closure of the rolls with the potential to affect electoral participation, the Commission provided analysis of the number of voters this policy might impact but did not mount arguments for or against it. ⁹⁷ That proposal became law and was subsequently struck down by the High Court. ⁹⁸ On political finance, the Commission views the task of reconciling divergent views as ‘a matter for Parliament’ and avoids offering advice on ‘best practice’ as it ‘may create the impression that the AEC has entered into partisan debate’. ⁹⁹ This approach aligns with the AEC’s perception of itself as an administrator rather than a rule-maker.

There is scope for the Commission to play a stronger ‘protective’ role through the law reform process. Tham suggests that legislators could confer a statutory duty on electoral commissions ‘to provide public advice on the impact of electoral rules (whether current or proposed) on new candidates and parties as well as minor parties’—a brief that could be extended to electoral fairness and integrity more broadly. ¹⁰⁰ However, even with such a mechanism in place, the Commission would be powerless to prevent lawmakers from enacting unfair electoral rules.