If online enrolments are legal under the Electoral Act, why would GetUp need to lobby for electoral reform?

Pete

I think you make some good point about the veracity of the websites that people are using to enrol. However, I think that an action by GetUp! might be exactly what our luddite public service needs.

As I understand, the object of the Electronic Transactions Act 1999 (Cth), s 3(d), is to enable the community to use electronic communications in their dealings with government. And I refer to s 10 of that Act regarding the general validity of electronic signatures and I'm not talking about OTT encrypted signatures/certificates etc but just electronic methods of indicating a person's approval of a communication (ie even just a jpeg of a signature).

I'd like to refer to the argument that electronic signatures are more prone to forgery than their written counterparts. Written signatures are easily forged and are no less capable of forgery than their digital versions. It's not that written signatures are "safer" it's just that the ability to mass forge signatures becomes very easy with electronic signatures.

(In any case, I don't believe that the AEC compares your signature against a prior record of that signature. There is no security at all with a written enrolment form as opposed to an electronic version except in the minds of the computer illiterate.)

If GetUp! have a proper claim then they should be able to enforce it against the AEC. If we run the argument that because the government must use taxpayer money to defend claims and that equals unacceptable then why bother with Legal Aid and why let anyone bring an action against the government? If the claim is frivolous then it shouldn't cost taxpayers much anyway.

I disagree. Get Up! should sue the AEC and try to establish a case for legal online enrolment.

Get Up! were very irresponsible to tell people that "legal advice" meant their website was all above board and it was OK to enrol in any way other than the ways approved by the AEC. You can get legal advice to support almost any opinion, I understand, but that doesn't mean you'll win a court case based on that advice.

However if Get Up! are prepared to go to court to try and get a ruling that online enrolment is legal, then good on them. I don't see a problem with third parties collecting enrolment details and passing them onto the AEC - as long as those third parties don't keep the information for other purposes.

That includes not having a fine-print "privacy" policy saying you can opt out of having your information kept if you hand-deliver a clay tablet with a request in Babylonic cuneform to an address in Humpty Doo between 2 and 2.17pm on Tuesdays.

Shane, the reason I think it is a waste of money for both GetUp! and the public, is that even if GetUp! was to win, it's only a symbolic win because I don't think it removes the need for electoral reform. The idea of having third parties facilitate online enrolment is very troubling to me from both a security and certainty perspective.

@djackmanson I just feel there are too many problems with third parties collecting online enrolment details. Voters should only need to go the AEC website to enrol online; they shouldn't have to discern which third party website is valid, secure and reliable.

You're right about the whole symbolic win. But symbols are important. And it may bring about and encourage the electrol reform that's needed. We're probably closer in views than my post might suggest.

On the whole 3rd party issue though, people act through agents all the time. What if I had my lawyer prepare me an enrolment form and then fax it off for me? Would the AEC complain? Would they be right to complain? (But I acknowledge that doesn't solve the security problem you raise because we trust lawyers to do the right thing. Don't we?)

I accept that symbols are important, but I still don't think much is achieved practically by bringing a lawsuit on this issue. I also don't like the idea of the AEC for behaving entirely responsibly in this instance.

Also, I agree that people act through agents all the time, but I do think having people actually submit their enrolment to a third party, instead of to the AEC directly, is distinguishable from the sort of situations you describe (especially where that third party is not a lawyer, accountant or someone else who owes a fiduciary duty their client, but is instead an accountable, and potentially unreliable or insecure, website).

(1) I think the acceptance of electronic signatures is an administrative issue and GetUp! is seeking to clarify the law re electronic signatures. I see it as clarifying the law as it stands right now - a purpose for which our courts exist. Electoral reform I think is a much bigger issue separable issue.

(2) I think this is clearly an agency issue and while distinguishable I don't think that takes it away from it still being an agency issue. People should be free to choose their agents (with some limits, this not necessarily being one of them).

(3) I don't believe that fiduciary duties are necessary for the collecting and passing-on of some fairly basic personal information. There are no financial implications and I think some well-worded contractual terms would suffice (issues of consideration aside for the moment) together with some basic privacy protections.

@shaneogden allow me to rebut ...

(1) What you say is true but it's a distraction. The focus of both GetUp! and the AEC should be electoral reform to bring enrolment into the digital age.

(2) Once again, I accept it is an agency issue, but that doesn't mean that it should be preferred or only method for online enrolment.

(3) Perhaps, but I think there is the potential for there to be all sorts of problems if we go down that path, particularly with sites being set up that may not forward on the enrolment to the AEC and the like. We might be able to trust GetUp! (and even then I am sure there are plenty of people who wouldn't trust GetUp!) but that doesn't mean we should let anyone set up a website and offer this service. You could counter by saying we could authorise certain sites or organisations to do so, but that would presumably require amendments to the legislation or regulations, and if you're going to do that, you may as well allow for the AEC to accept online enrolments directly.

Essentially, I don't think our positions are that far apart; we just differ on the merits of the strategy of filing a lawsuit to bring about the sort of change we both think should happen.

As a Getup member, I voted against them wasting money on this action, because:
(i) the AEC was accepting faxes and email attachments - surely most of the tech-savvy young would be able to do one or other of these from their computers;
(ii) para 10(1)(c) of the Electronic Transactions Act says that requirment for a signature is taken to be met where "if the signature is required to be given to a Commonwealth entity, or to a person acting on behalf of a Commonwealth entity, and the entity requires that the method used as mentioned in paragraph (a) be in accordance with particular information technology requirements--the entity's requirement has been met" so if they're requiring signatures to be faxed or scanned that's that (and that's not trerribly unfair)
(iii) even if a court found that they should have been accepting forms via Getup, it's way too late for the court to order any effective remedy.

If the law needs reform it can be done after July 2011 when there'll be more Greens and one less Fanaticism First (ie none of 'em) in the Senate, and rationality might prevail.

Interesting point Jack Aranda re s 10(1)(c) ETA. It sent me to have a read of the Act. But I can see, however, a potential distinction. (Albeit only a temporary one until the AEC updates its website.)

It's that the AEC on its website provides requirements as to s 9 of the ETA re "writing" requirements and so allows emails and faxes as acceptable "electronic communications" but it doesn't have any (that I can see) requirements for s 10 signatures.

The website only instructs people sign in writing. Thus it arguably means that s 10(1)(c) doesn't activate because the AEC has outlined no technological requirements for signatures leaving only ss 10(1)(a) & (b) as the active provisions. This means it's up to the person enrolling to indicate their approval of the information communicated in a method they choose which is reliable and appropriate for the purpose for which the information was communicated.

But, otherwise, you're probably right and most tech-savy could do all that is required to meet the AEC requirements themselves.

Given the alleged Gov 2.0 agenda, online enrolment should be a priority. I agree with you Peter that the push should be to get the AEC to create such a system.

Also I've written up a detailed discussion of the why I think that GetUp!'s system would likely to be a valid submission of an enrolment or change of enrolment details form under the Electronic Transactions Act.

Pete, I don't agre with your reasons for why GetUp! shouldn't do this.

They have advice that it's arguable. You say that you think that OzEnrol is legal.

I can't see why this is a matter where the time it would take to get the proceeding on for hearing, or the hearing itself, would be lengthy. There's unlikely to be any disputed evidence. It's presumably a relatively straight forward legal point. It might take at best two days to have a fully ventilated argument and quite possibly only a day. If it was urgent (which I'm assuming, though I don't know, that with the roll closed it's not), you could probably get it on very quickly. Instead, it might take at most a couple of months with written outlines exchanged, limited affidavit evidence filed and served, etc.

If they win, the consequence will inevitably be legislative reform. As you say, the possibility of multiple third parties (including some possibly shady operators) attempting to facilitate online enrolment would be unappealing. It would also, I think, be politically unacceptable. Hence, legislative reform.

While the proceeding is on foot, it would get media attention. It could potentially lead to public debate and to the major parties taking positions during the campaign. Otherwise, it is unlikely that this is an issue that will gain a lot of traction. It is also unlikely to attract the attention of legislators after the election. Left to their own devices, the reality is that the Tories are more likely to want to limit the right to vote to rural land owners over the age of 35 and Labor is more likely to have a town hall consultation on the government's response to the report of the inquiry recommended by the summit it called.

Explain to me again the problem for which online voter registration is the solution? Apart from sheer laziness, that is.

@Stilgherrian I think there are a few reasons why we need online voter registration. The first is simply "it's time" - if we can do our tax and banking online, there is no reason why shouldn't be able to enrol online. People expect that they can interact with government online; indeed, all this talk of Government 2.0 only reinforces that fact. Second, and more importantly, the easier it is to enrol means that more people will be on the electoral role. Third, with the electoral closing only a few days after the campaign is announced now, a system of online enrolment would make it easier for people to enrol in time.

Loved your blog Peter... but here at GetUp we have been lobbying political parties for electoral law reform for years!

quoting your blog:
"Rather GetUp! would be better spent directly lobbying the political parties, as well as the AEC, for electoral law reform that would modernise out electoral process and enable the AEC to accept online enrolments"

GetUp has been campaigning on electoral reform since 2006, when the Howard Government introduced the ever-so-ironically-named 'Electoral Integrity Act'. The only group who have pushed as hard for electoral reform are the AEC themselves.

Since 2007, we've been campaigning the new Parliament to overturn those laws and modernise electoral law in Australia.

We came very close to sucess, too. In fact the Government introduced a raft of amendments to the Electoral Act, which included moving the enrolment deadline back to 7 days after writs, and allowing for online updates of enrolment. The latter was one of the last bills to pass the Senate before it adjourned in the last session - but unfortunately it was too late. The bill failed to achieve royal assent in time for the AEC to implement an online update of enrolment system for this election. The former was just hours from being voted on when the Senate adjourned. That bill was opposed by the Coalition but supported by Nick Xenophon and the Greens; Steve Fielding of Family First had the deciding vote.

GetUp members contacted Senator Fielding in their tens of thousands, urging him to vote for the bill, and we were in productive discussions with the Senator's office. GetUp also commissioned an Auspoll of 1500 voters in the final weeks before the vote. It found that 96% of Australians thought we should have longer than we currently do to get enrolled to vote. 72% actually thought that the Government should go further, and give Australians several weeks or more to enroll. Ultimately, I believe Senator Fielding would have done the right thing and sided with the 96% of Australians disagree with the current electoral laws.

Of course, GetUp is a campaigning organisation not and enrolment organisation. I don't want GetUp or any other organisation to offer enrolment services. For one thing, our enrolment site, OzEnrol, used electronic fax that cost GetUp 45c per enrolment! Clearly, the Government should provide online enrolment - but given the failure of our politicians to modernise electoral law, we thought we'd give it a shot just to make a point. It's unfortunate that the AEC disagreed with our interpretation of the law, but we think the (potential) case is already bringing public attention to the need for electoral reform.

We'll continue our campaign for electoral reform; and we hope that next election 1.4 million Australians won't miss out on voting because of bureaucracy and antiquated laws. Over the last 2 days GetUp members have resoundingly voted for this court case, and the broader campaign, to continue: at the moment 85% of respondents have voted 'yes' in our email poll on whether to go to court.

In conclusion, let me say that I don't actually support online enrolment. I don't support enrolment at all. In this day and age, the Government should automatically enrol Australians to vote if they're eligible. They've made it work in New Zealand and Canada - it's time we caught up and honoured that great Australian tradition of leading the world on franchise and democracy.

See our submission to the JSCEM review of the 07 election for more on our suggestions: www.getup.org.au/files/campaigns/jscem.pdf.

PS - I've posted a similar article on Elliott Bledsoe's blog, so I apologise for the repetition.

If GetUp! is paying 45 cents to send a fax electronically, they need to shop around.

Thanks Sam. I really appreciate the background you have provided to this issue and I certainly commend all the work that GetUp! has done lobbying for electoral reform. I just disagree on the best way for GetUp! to agitate for change in this instance. Thanks again and keep up the great work.

"If GetUp! is paying 45 cents to send a fax electronically, they need to shop around. "

- the forms are 3 pages long : )

What is so hard about the AEC having it's own secure online registration facility (for the purpose of including the names on the roll for the election day) which then has to be backed up with photographic proof of identity (or birth certificate) at the polling booth? Online fraud can be back traced if necessary with the same due process as for any other online fraud.

You can legally sign electronically with a pen input device like one of these from Wacom: http://www.wacom.com.au/displays/STU-500
But of course not everyone is going to have one of those at home. Perhaps if they were available to be used for on the spot enrolement at post offices?

If you're already in the Post Office, why not just sign the paper form and, erm, post it? No new technology purchase required!

Because its a process, and you won't be enrolled instantly. The letter has to arrive and be opened a process with thousands of others. If it was possible to do it electronically you would be enrolled on the spot.