Rankin v State Electoral Commissioner - [2010] SAEOT 3

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RANKIN v STATE ELECTORAL COMMISSIONER
[2010] SAEOT 3
Judgment of Her Honour Judge Trenorden, Member Ms A Bachmann and Member Mr D Shetliffe
8 September 2010
HUMAN RIGHTS - DISCRIMINATION
Complaints referred at request of complainant - complainant is vision-impaired and unable to vote at elections without assistance - whether failure to provide computer assisted voting or Braille voting or a combination is discriminatory - whether Complaints are valid Complaints.
HELD: Complaints dismissed
Equal Opportunity Act 1984; Electoral Act 1985; Commonwealth Electoral Act 1918; Anti-Discrimination Act 1977, referred to.
Fittler v New South Wales Electoral Commission & Randwick City Council (No 2) [2008] NSWADT 116 (18 April 2008), considered.

RANKIN v STATE ELECTORAL COMMISSIONER
[2010] SAEOT 3

The complainant, Mr Rankin, complains that he is unable to exercise his right to a secret ballot at State elections, although he is above the age of 18, and enrolled to vote in the electorate of Wright in South Australia.
Mr Rankin has a physical impairment. He is vision impaired and has been “print blind” as he said, since the age of about 17 years. He learned to read using the Braille system but as his instruction in the system did not commence at a young age, he does not read Braille as fast or effectively as people who commenced learning the Braille system in their primary school years. Mr Rankin uses a computer and is able to read and compose and send documents with the assistance of voice software on his computer.
The Complaints
On 26 June 2007 the Commissioner for Equal Opportunity referred a Complaint by Mr Rankin to this Tribunal at his request; the Commissioner having declined the Complaint. That Complaint, the further and better particulars of which were amended once solicitors were representing Mr Rankin (June 2008) was that the Electoral Commissioner for South Australia had contravened and continued to contravene s 76 of the Equal Opportunity Act 1984, by failing to provide computer assisted voting machines for vision impaired persons at State elections. This Complaint is action number 224 of 2007 (the First Complaint). The relief sought was as follows:
a.that the Commissioner do provide at the next election for the South Australian Parliament and at subsequent elections, computer assisted voting machine facilities such as would permit Rankin and persons with vision impairment, to cast secret ballot votes in compliance with s 79 of the Electoral Act 1985.
b such further or other Orders as this Honourable Tribunal deems fit
In October 2008, Mr Rankin sought to amend his Complaint to allow for an alternative argument namely that the Electoral Commissioner should have provided Braille ballot papers to vision impaired persons to permit them to cast a vote by secret ballot. In addition, Mr Rankin sought to argue that the Commissioner is required to provide Braille ballot papers as an alternative to computer aided voting facilities. This Tribunal heard argument in relation to the proposed amendment of the Complaint. By its decision on 29 October 2008 the Tribunal refused to allow the Complaint to be amended but allowed an amendment of the further and better particulars of the Complaint to add the following under the heading “Relief/Orders Sought”:
an Order pursuant to s 96(1)(a) of the Equal Opportunity Act that the Commissioner pay compensation to Rankin.
On 23 September 2009 Mr Rankin lodged a further Complaint with the Equal Opportunity Commission, through his solicitors in which he complained as follows:
1.The Electoral Commissioner had failed to afford Mr Rankin an opportunity to cast a secret ballot vote by means of Braille voting, and would not provide him with Braille voting at the next State election.
2.The Electoral Commissioner had failed to take steps to provide computer assisted voting at the then next State general election (2010) in a limited number of central locations.
Upon referral to this Tribunal, at Mr Rankin’s request, this Complaint became action number 49 of 2010 (the Second Complaint).
On 29 March 2010, Mr Rankin’s solicitors filed further and better particulars of Mr Rankin’s claim (action 49 of 2010). In that document, the Statement of Complaint was articulated as including the following:
1.The Electoral Commissioner had failed to provide at the 2010 State election (held on 20 March 2010) computer assisted voting machines that would allow vision impaired electors such as Mr Rankin to cast a secret ballot;
2.That the Electoral Commissioner had failed to provide at the 2010 State election, or at all, Braille ballot papers that would allow vision impaired electors such as Mr Rankin to cast a secret ballot, and
3.That at the immediately preceding general election for the South Australian Parliament, Mr Rankin had been forced to vote utilising the method provided for in s 80 of the Electoral Act.
It appears to be alleged in the further and better particulars that the Electoral Commissioner had breached s 66(d) of the Equal Opportunity Act.
The relief or orders sought in this Second Complaint is as follows:
AThat the Commissioner provide at the next election for the South Australian Parliament, and at subsequent elections, computer assisted voting machine facilities such as would permit Rankin and persons with vision impairment, to cast secret ballot votes in compliance with s 79 of the Electoral Act.
BIn the alternative to A, that the Commissioner provide at the next election for the South Australian Parliament, and at subsequent elections, Braille ballot papers that will permit Mr Rankin and persons with vision impairment, to cast secret ballot votes in compliance with s 79 of the Electoral Act.
CAn order pursuant to s 96(1)(a) of the Equal Opportunity Act that the Commissioner pay compensation to Rankin in respect of the 2006 State election.
DAn order pursuant to s 96(1)(a) of the Equal Opportunity Act that the Commissioner pay compensation to Rankin in respect of the 2010 State election.
E Such further or other orders as the Honourable Tribunal deems fit.
The two Complaints were heard together by the Tribunal.
The Electoral Commissioner’s Response
In relation to the First Complaint, the Electoral Commissioner denied that she had unlawfully discriminated against Mr Rankin on the ground of impairment or failed to provide special assistance. The Electoral Commissioner said that she had offered and provided special assistance to all electors who are unable to vote without assistance, including the complainant. Although she admitted not having provided computer assisted voting at the 2006 State election, she said that she was constrained by the prescriptive terms of the Electoral Act and therefore was not able to provide a direct voting facility by computer. Further the Electoral Commissioner relied on s 76(3) of the Equal Opportunity Act, arguing that she could not reasonably be expected to perform the service, namely the provision of a computer assisted voting facility for Mr Rankin, except on more onerous terms than would otherwise apply.
In relation to the Second Complaint, the Electoral Commissioner admitted that she did not provide computer assisted voting at the 2010 State election but said that she was not under any obligation to do so, having provided special assistance to blind and visually impaired persons to vote, pursuant to s 80(3) of the Electoral Act. Further, the Electoral Commissioner admitted that she did not provide Braille voting papers for the complainant at the 2010 State election but said that she was not under any obligation to do so. In addition, the Electoral Commissioner asserted that the implementation of Braille voting would require legislative change to the Electoral Act, which is outside her control.
The Electoral Commissioner asserts that the correct test is not as asserted by Mr Rankin, namely, whether the provision of Braille voting papers to vision impaired persons such as Mr Rankin to permit them to cast a vote by secret ballot was reasonable. The test, it is asserted, is whether the requirement of Mr Rankin to vote using a Braille voting paper or computer assisted voting is unreasonable in the circumstances, taking into account the statutory limits on the Electoral Commissioner’s power and control over the voting process. Thus, the Electoral Commissioner asserts that the requirement by Mr Rankin to vote using these alternative forms was unreasonable in the circumstances.
Clearly, underlying the Electoral Commissioner’s assertion, is her argument that the implementation of either Braille voting or computer assisted voting would require legislative change to the Electoral Act.
In addition, the Electoral Commissioner asserted that this Tribunal had no jurisdiction to hear and determine the Second Complaint, because it was made about predicted future events and was not a Complaint that a person has acted in contravention of the Equal Opportunity Act. In a nutshell, the Commissioner asserts that the Second Complaint is beyond the scope of s 93 of the Equal Opportunity Act and therefore cannot be entertained by this Tribunal.
Further, in so far as Mr Rankin has sought to lodge his Complaint on behalf of other persons who suffer from vision impairment or blindness, the Electoral Commissioner asserts that Mr Rankin is not entitled to make a Complaint on behalf of other persons, and secondly that the Tribunal does not have jurisdiction to hear and determine allegations concerning persons other than Mr Rankin.
The Equal Opportunity Act
Part 5 of the Act addresses discrimination on the ground of disability. It is not disputed that Mr Rankin has a disability within the meaning of the Act.
S 76 of the Act provides that it is unlawful for a person who offers or provides services to which this Act applies to discriminate against another on the ground of disability either:
(c) by refusing or failing to supply the goods or perform the services; or
(d) in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
It is not disputed that the services required to be provided by the Electoral Commissioner under the Electoral Act are services to which the Equal Opportunity Act apply.
S 66(d) is of assistance. It provides that for purposes of the Equal Opportunity Act, a person discriminates on the grounds of disability:
(d) if, in circumstances where it is unreasonable to do so –
(i) he or she fails to provide special assistance or equipment required by a person in consequence of the person’s disability; or
(ii) he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other’s disability.
The argument as we understand it is that the Electoral Commissioner unlawfully discriminated against Mr Rankin in the manner in which the services were performed by failing to provide either computer assisted voting or Braille voting as required by Mr Rankin in consequence of his disability.
However, the Commissioner argues that she has not discriminated against Mr Rankin, and s 76 does not apply because she cannot reasonably be expected to provide Mr Rankin with either Braille voting or computer assisted voting, or that she cannot reasonably be expected to do so except on more onerous terms than would otherwise apply. This argument relies on s 76(3) of the Equal Opportunity Act.
The Equal Opportunity Act, in s 93 sets out who may make a Complaint and how a Complaint may be made. A person may make a Complaint as a result of being aggrieved personally by the act complained of. In addition, a person may make a Complaint on behalf of himself or herself and any other person aggrieved by the act provided that person has consented in writing to the making of the Complaint on his or her behalf, not being a person who is either a child or has an intellectual disability: s 93(1) and (1a).
Threshold Issues
Neither of Mr Rankin’s Complaints to the Equal Opportunity Commissioner included the consent of any other person to the making of a Complaint on their behalf. It follows that Mr Rankin’s Complaints must be taken to be Complaints on behalf of himself only and this Tribunal has no jurisdiction to consider the Complaints in respect of any other person.
It is also clear that s 93 enables Complaints alleging that a person has, in the past, acted in contravention of the Equal Opportunity Act. Various provisions of s 93, such as ss 2 make it clear that a Complaint should relate to a past event.
The First Complaint was lodged 4 days prior to the 2006 State Election. It alleged that “the Electoral Commission had in place a policy to prevent individuals with an impairment to vote without the assistance of another”, and claimed that Mr Rankin had “spoken to the Electoral Commission about this some time ago without success”. We note that the Complaint has obviously been written by another person on behalf of Mr Rankin. It follows that we should exercise care in placing emphasis on the precise form of words used. However, it is clear that the Complaint was in anticipation of the Electoral Commissioner following the usual, mandated procedure at the forthcoming State Election (18 March 2006), which Mr Rankin presumed to be a policy.
Strictly speaking, the First Complaint was not made in respect of a specific act, alleged to have been discriminatory and contrary to the Equal Opportunity Act. If the Complaint had been made after the election and in response to a request to vote by means of a computer, or following a request to the Electoral Commissioner prior to the election for the provision of computer assisted voting to enable Mr Rankin to cast his vote unaided by another person, it might have been a proper Complaint within s 93 of the Equal Opportunity Act.
Having come to this conclusion, we also acknowledge that Mr Rankin alleges having had past enquiries rebuffed by the Electoral Commission, which was presumably responding on behalf of the Electoral Commissioner. There was no specific evidence regarding this allegation, and Mr Rankin was vague as to when his enquiries were made and responses given by the Electoral Commission.
Despite the apparent flaw in the First Complaint which would take it outside the category of Complaints that this Tribunal may address under the Equal Opportunity Act, we will consider the Complaint, in case we are in error in our finding that the First Complaint is flawed.
The Second Complaint was made on 23 September 2009, some 6 months prior to the 2010 State Election. In similar vein to the First Complaint, Mr Rankin complained of the position taken by the Electoral Commissioner that Braille voting would not be available at the 2010 election, and that no steps would be taken to implement Braille voting for that election.
As with the First Complaint, the Second Complaint is not made in relation to a past act of discrimination contrary to the Equal Opportunity Act by the Electoral Commission but is in relation to the alleged policy of the Electoral Commissioner or her interpretation of the Electoral Act, by which she would fail to afford Mr Rankin a truly secret ballot at the forthcoming State Election.
Again, we conclude that the Complaint is flawed, for the same reasons as the First Complaint. It is not a proper Complaint within s 93 of the Equal Opportunity Act. But in case we are in error we will consider the Second Complaint also.
Right to Secret Ballot
Underlying Mr Rankin’s complaint is an assertion that he has a right to a secret ballot. Our attention was drawn to the International Covenant on Civil and Political Rights, which was ratified by Australia on 13 August 1980; 30 years ago. Article 25 speaks of the right to vote. The relevant provisions of that article are set out below:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions;
(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.
We were also reminded of the International Covenant on the Rights of Persons with Disabilities, which was ratified by Australia on 21 July 2008. Our attention was particularly drawn to Article 29 of the Covenant, the relevant parts of which are set out below:
States Parties shall guarantee to persons with disabilities political rights and the opportunity to enjoy them on an equal basis with others, and shall undertake to:
(a) ensure that persons with disabilities can effectively and fully participate in political and public life on an equal basis with others, directly or through freely chosen representatives, including the right and opportunity for persons with disabilities to vote and be elected, inter alia, by:
(i)    ensuring that voting procedures, facilities and materials are appropriate, accessible and easy to understand and use;
(ii)     protecting the right of persons with disabilities to vote by secret ballot in elections and public referendums without intimidation, and to stand for elections, to effectively hold office and perform all public functions at all levels of Government, facilitating the use of assistive and new technologies where appropriate;
(iii)    guaranteeing the free expression of the will of persons with disabilities as electors and to this end, where necessary, at their request, allowing assistance in voting by a person of their own choice.
It is worthy of note that it is not the secret ballot itself that is so highly valued; it is the process by which a secret vote is undertaken. Peter Brent in his article in “The Australian Ballot; Not the Secret Ballot” in 2006 Australian Journal of Political Science 41(1): 39-50 concluded that the contribution made by Australia to free and fair elections is not the secret ballot itself, but the integrity of the system which prevents coercion of an elector by others. Brent identified these features in his conclusion, at page 48 of the article:
…the Government printed ballot slip, which an electoral official initialled before giving to the voter, who took it into a secret compartment to make his choice, and then placed it folded into a ballot box under the eye of an official…
Presently, electors in South Australia who have special needs, for example those who are unable to read a ballot paper because blind or vision impaired, may exercise their vote with assistance. In some cases, sufficient assistance will be provided by an electronic magnifier. Through an arrangement with the Royal Society for the Blind in South Australia, the Electoral Commissioner makes these instruments available at some polling booths. Those electors able to vote using one of these instruments, are able to cast a secret vote without assistance from any other person.
In other cases, assistance is provided by another person going into the polling booth with the blind or vision impaired elector, in order to record on a ballot paper, his or her vote, as directed by the elector. Persons who vote under this system obviously are unable to cast a truly secret vote.
There is a flaw in the system where not all votes are able to be cast in secret. The concern was expressed by Bryan Mercurio in an article “Discrimination in Electoral Law” in (2003) 28(6) Alternative Law Journal 272 at 274, as follows:
As long as we rely on a system that trusts a polling volunteer or friend of the voter to accurately and honestly mark the ballots and record the votes of assisted voters, we will have the fear that the assistors will encourage or coerce the voter into voting a particular way or even go so far as to ignore the wishes of the voter and mark the ballot paper how they desire. Even if such fears are largely misguided, it is human nature to be suspicious. Moreover, the act of voting is the cornerstone of democracy, and not many participants will willingly entrust their vote to another person.

Thus, it is clear that enabling blind and vision impaired electors to vote using the assistance of another person to manually record their vote on the ballot paper is fraught with danger for our democratic system and may be a violation of a person’s right to vote, according to Mr Rankin.
It is certainly recognised elsewhere that it is desirable to enable blind and vision impaired persons to exercise their vote themselves, unaided by another person. Electronically assisted voting, which allows a person to vote with the aid of a computer, has been available in the Australian Capital Territory, at elections in 2001, 2004 and 2008. This form of voting was trialled for persons who are blind or have low vision, at the 2006 State election in Victoria, and its continuation is supported in that State. In Tasmania, a similar trial of electronically assisted voting took place at the 2007 election for the Legislative Council. According to the report on the 2007 Federal Election Electronic Voting Trials (March 2009), Joint Standing Committee on Electoral Matters, (the Parliament of the Commonwealth of Australia):
electronically assisted voting using a range of technologies and devices is a feature of National, State or Local Government elections in a number of overseas countries including the United States, France, India, and Canada. [2.16]
Electronic voting for blind and vision impaired electors was trialled at the 2007 Federal elections in Australia, after relevant amendments had been made to the Commonwealth Electoral Act 1918. Electronic voting and internet voting have been trialled in Ireland and the United Kingdom at various elections.
In 2009 Queensland offered Braille voting for blind and vision impaired electors at its State election for its sole House of Parliament.
In the Minutes of the Meeting of the Blind and Vision Impaired Reference Group chaired by the Australian Electoral Commissioner held on 16 April 2010 and attended by persons including the Electoral Commissioners or their representatives from all States and Territories excepting Tasmania, Northern Territory and South Australia, (who were apologies) it was noted that “there appeared to be a groundswell of activity to assist blind voters in having a secret, accessible and independent vote”.
In South Australia, for the 2006 State election the Electoral Commissioner borrowed 7 electronic print enlargers or magnifiers from the Royal Society for the Blind. These were placed at pre-poll voting centres and polling booths, for use by electors with vision impairment. This may have also occurred at the 2010 State election.
The Electoral Act
To understand the Complaint and to begin to address the arguments, it is necessary to consider the relevant provisions of the Electoral Act 1985.
A person is entitled to vote at a State election, provided he or she is enrolled: s 69. An entitlement to be enrolled is held by every Australian citizen of sound mind who is 18 years or more: s 29. Once his or her name is on the electoral roll, a person is an elector: s 4 (1). Every elector has a duty to record his or her vote at each election for the district in which he or she is enrolled, or at least to observe the formalities of voting, even if leaving the ballot paper unmarked: s 85. It is an offence to fail to vote at an election without valid and sufficient reason: s 85(7).
An elector who is entitled to vote at an election and attends at a polling booth and claims to vote (and whose claim is not rejected), has a right to be issued with a ballot paper: s 78. A ballot paper issued to an elector must be authenticated by the issuing officer at the polling booth: s 73(3). Once a ballot paper has been issued to an elector, he or she must retire alone, without delay, to a vacant compartment within the polling booth and there, unless the elector is unable to vote unaided, mark his or her vote on the ballot paper (or not as desired), deposit the ballot paper in the ballot box and leave the polling booth: s 79.
Where the elector satisfies the presiding officer at the polling booth that he or she is unable to vote unaided, the elector may be accompanied by an assistant of his or her choice or some other person acceptable to the presiding officer who may mark the ballot paper in accordance with the elector’s instructions: s 80. The assisting person commits an offence if he or she hinders or interferes with the free exercise of a vote by the elector: s 111.
Thus, an elector has a right to vote at an election for the district in which he or she is enrolled. Indeed, an elector has a duty to attend at a polling place for the district in which he or she is enrolled, accept a ballot paper, retire to an unoccupied compartment for the purpose of voting and deposit the ballot paper into the ballot box. However, an elector does not have a right to a secret ballot, under the legislation. An elector has both a right and a duty to vote, which if exercised, must be exercised in a specified manner (unless the elector is unable to vote unaided).
It follows that there was no right held by Mr Rankin which he was not able to exercise because he could not be provided with the means to enable him to vote (Braille ballot papers or computer assisted voting) without the assistance of another person. At all times it has been open to him to exercise his right and fulfil his duty, to vote, in accordance with the Electoral Act.
Did the Electoral Commissioner discriminate against Mr Rankin who is legally blind, where it was unreasonable so to do, because she failed to provide special assistance or equipment in the form of Braille ballot papers or computer assisted voting?
Braille Ballot Papers
The Electoral Commissioner could not reasonably have produced Braille ballot papers for Mr Rankin alone. Although it is not known whether there are other blind or vision-impaired electors in Mr Rankin’s electoral district, it is clear that there are other blind or vision impaired electors in the State. To produce one set of ballot papers only for Mr Rankin’s benefit in a general State election, would be to discriminate against other blind and vision impaired electors in the State. This would be unreasonable.
The Electoral Commissioner would have had to have made available Braille ballot papers for all electoral districts, for the benefit of any blind or vision impaired elector who might have sought to use same. The cost of producing Braille ballot papers might have been prohibitive for the Electoral Commissioner, having regard to the budgetary constraints within which she had to work for the 2010 State election, but we do not have to decide whether this was the case.
Braille ballot papers would have presented difficulties. Braille text occupies significantly more space than printed text, which would have resulted in the ballot paper for the Legislative Council at the 2010 State election, for which there were 54 candidates, being comprised of a number of pages. It would be preferable for the pages to be stapled together to ensure that the ballot paper was a single document albeit comprised of a number of pages, and to keep all parts of the document together.
Not all blind and vision-impaired electors have the facility to write numbers in the box against each candidate’s name, as can Mr Rankin. For some electors, it might have been necessary to facilitate voting using a Braille embossing machine. That would be satisfactory for a ballot paper comprising a single page of Braille text, but it is difficult to use a Braille embossing machine where the document consists of several pages stapled together.
Mr Rankin expressed his preference to vote below the line for the Legislative Council election. Even assuming Mr Rankin would have been able to write numbers in the boxes to place the candidates in order of preference, because of the large number of candidates, that would have taken a long time and presented the risk that not all the boxes beside the candidates’ names would have been numbered sequentially. The exercise was problematic for a sighted person filling in the boxes on a large but single sheet ballot paper. It seems to us that it would have presented an increased difficulty if the ballot paper was spread over a number of pages. Added to this concern is the admission of Mr Rankin, that he reads Braille slowly and it is not his preferred manner of reading the contents of documents. We understand the reasons for his limitations with Braille and accept that he prefers to read documents by other means.
In addition to the potential problems set out above with respect to Braille ballot papers, there is also a difficulty in counting Braille votes, having regard to the mandated process set out in the Electoral Act. It is sufficient to state that we cannot see that there could have been compliance with the Act, in the case of the ballot papers for the Legislative Council election in 2010, having regard to the number of candidates. All informal votes must be rejected once the ballot boxes have been opened, and before the first preference votes are counted by each assistant returning officer for the portion of the district in which he or she exercises his or her powers, in the presence of an assistant presiding officer or poll clerk and authorised scrutineers. This would require a sighted Braille reader to be the assistant returning officer in each case, or for that officer to have some other means by which he or she could identify to his or her satisfaction, all informal ballot papers, in order for him or her to reject them, in conformity with the Act. We are not satisfied that this would have been reasonable or even achievable. We take it to be self-evident that a sighted person with Braille skills would be rare indeed, and to find these skills in an assistant returning officer even rarer.
The Electoral Act is prescriptive about the form of ballot papers; indeed the entire voting process. S 61 of the Act provides as follows:
(1) Subject to this Act, ballot papers must be in a form prescribed by legislation.
That is a mandatory direction to the Electoral Commissioner, who is responsible for the proper conduct of elections in accordance with the Act: s 8(1)(b). The Electoral Regulations 2009 set out the form to be followed. The Act speaks of “printing” the ballot papers: ss 59, 60. It is clear from regulation 4 and the forms 1 and 2 that the ballot paper for each house of parliament is to be printed on one sheet of paper.
It would have been impossible to produce in Braille and on one sheet, the ballot paper for the 2010 Legislative Council election, or if possible, it would have been so unwieldy as to be unmanageable, having regard to the fact that Braille letters necessarily take up more space on paper than ink printing.
Thus, the Electoral Commissioner could not have validly produced or authorised a Braille ballot paper for the Legislative Council. The requirements of the legislation and the paper space required for Braille embossing would have resulted in a Braille ballot paper that was not in accord with the Electoral Act. The absence of Braille ballot papers for the 2010 State election was not as a result of the Electoral Commissioner’s policy, as alleged. It was beyond the power of the Electoral Commissioner to produce Braille ballot papers.
We have concluded that the Electoral Commissioner could not reasonably have been expected to perform the service of providing ballot papers in Braille to Mr Rankin for the 2010 State election.
Computer Assisted Voting
The Electoral Commissioner could not have enabled Mr Rankin alone to use a system of computer assisted voting. That would have been an act of discrimination against other blind or vision-impaired electors. In addition, it would not have been possible to establish a trustworthy computer system, without thorough testing, which is expensive.
Dr Detmold gave evidence of the possibility of an inexpensive, simplified, hybrid computerised voting system whereby a blind elector, with the aid of voice activated software, could be given orally the names of the candidates and asked to record his or her vote. The elector would do so orally, the vote would be recorded and the computer would, through connection to a Braille embossing machine, produce a completed Braille ballot paper. This vote would ultimately be deciphered using a template, or alternatively, by a person who is both sighted and can read Braille.
There are several difficulties with the proposed simplified system. Firstly, the system proposed for the cost estimated by Mr Detmold, would be untested, with no guarantee of its reliability or security. For any computer system to be acceptable, it must have undergone rigorous testing to ensure the reliability of the system, that is, that it will reliably produce what is expected, having regard to the input. In addition, the security of the system and network has to be assured.
The other objections relate to the difficulties of checking whether a Braille vote is informal particularly in the context of large numbers of candidates for Legislative Council elections, and deciphering and counting the vote in accordance with the Act, as set out above in relation to Braille ballot papers. Further, the blind or vision impaired elector would need to have both computer skills and Braille skills, which we understand to be a rare skills combination.
In any event, the system is simply not permitted under the Electoral Act. As we have earlier said, the Electoral Commissioner is bound by the prescriptions in the legislation. There is no provision in the Act enabling the Commissioner to establish any form of computer assisted or electronic voting. To do so would be beyond the powers of the Electoral Commissioner.
We note that the Complaint in relation to the failure to provide computer assisted voting was made in relation to the 2006 State election. At that time, the relevant regulations were the Electoral Regulations 1997. However, there is no material difference as regards the prescribed forms, between those regulations and the regulations that were in force at the time of the 2010 State election.
The Electoral Commissioner could not have, nor can she presently, lawfully establish a computer assisted voting system for any blind or vision-impaired elector or generally. It would therefore be unreasonable to have expected her to make such arrangements for Mr Rankin or any blind or vision-impaired elector.
The Fittler Judgment
We were referred to the decision of the Administrative Decisions Tribunal of New South Wales, in Fittler v New South Wales Electoral Commission & Randwick City Council (No 2) [2008] NSWADT 116 (18 April 2008).
That was in relation to a complaint made by Mr Fittler, a blind elector, that contrary to his request the Electoral Commission had failed to provide him with a ballot paper in Braille and a means whereby he could vote by marking the ballot paper in Braille, at the election for his local Council, Randwick City Council East Ward, on 27 March 2004. The Tribunal determined that the Complaint was made out under the New South Wales Anti-Discrimination Act 1977; that the Electoral Commission had unlawfully discriminated against Mr Fittler on 27 March 2004.
That decision is not of course, binding upon this Tribunal. We also note the differences between that matter and this case: for example, the Randwick City Council election, East Ward, was a much simpler affair then either the 2006 or the 2010 South Australian State elections, in particular the elections for the Legislative Council, to which Mr Rankin’s Complaints relate.
Finally although the relevant legislative provisions in New South Wales at that time appear to have been identical or very similar to the relevant provisions in this State, we cannot be sure from the judgment that this was so, entirely. In any event, we do not agree with the New South Wales Tribunal that because certain forms of voting are not proscribed in the legislation, it was open to the Electoral Commissioner to implement them. Nor do we agree with the Tribunal’s interpretation that the equivalent of s 61 of the Electoral Act (SA) and the relevant regulations as to the form of ballot papers did not preclude production of a ballot paper in Braille. We have arrived at our conclusion having considered the structure of the Electoral Act in its entirety, and particularly the requirement for strict adherence to its provisions.
Conclusion
Both the First Complaint and the Second Complaint were flawed; that is, not Complaints as enabled under the Equal Opportunity Act. It follows that strictly speaking, the Tribunal was without jurisdiction to determine these Complaints. However, in case we were in error, we proceeded to consider both of Mr Rankin’s Complaints.
In neither the First Complaint nor the Second Complaint has discrimination by the Electoral Commissioner, contrary to the Equal Opportunity Act, been established.
While we can understand and do sympathise with Mr Rankin’s frustration at his inability to cast a secret vote, presently the Electoral Commissioner is unable to accommodate him under the Electoral Act, by which she is bound.
The First Complaint is dismissed. The Second Complaint is dismissed.
Comments
In light of the evidence, and noting the frustrations of Mr Rankin given what is occurring in other States and countries regarding the facilitation of secret voting for the blind and vision impaired, we consider it appropriate to make some comments and recommend actions, although of course they will carry no particular weight.
We note that the Electoral Commission produced a Disability Action Plan 2008-11. According to the 2008-09 Annual Report of the Electoral Commission, the Statement of Objectives includes the following:
Outcome 1:
Our services are tailored to meet the needs of people with disabilities
Strategies
…
·Provision of appropriate voting options at designated polling locations
Despite this objective and strategy, and the steps taken elsewhere in Australia, we are surprised that the Electoral Commissioner has not yet raised with the relevant Minister of the Crown the need to implement appropriate voting options, such as computer assisted or electronic voting, for blind and vision impaired electors.
It is most unsatisfactory, particularly in light of the innovations in other States and countries and the technological advances made in the past decade, that the Electoral Act in this State does not allow for more satisfactory options for electors with a disability, such as computer assisted or electronic voting. The voting system needs to be modernised in the interests of enabling electors with a disability to cast their vote themselves, and in secret, as can persons without a disability.
It is not for us to recommend that computer assisted or electronic voting be adopted in South Australia. We note that there are a variety of forms of voting that would enable blind and vision impaired voters to cast a secret vote. We note with approval the work being done by the Blind and Vision Impaired Reference Group of the Electoral Council of Australia, under the chairmanship of the Australian Electoral Commissioner. We note that at the April 2010 meeting the chairman concluded with comment about working towards an Australian standard for voting for the disabled, which would be of benefit to all.
We express our strong hope that the South Australian Electoral Commissioner will be given the resources to contribute to the development of such an Australia wide standard, while in the meantime looking to legislative reform, in this State such as has occurred in Tasmania, to enable a new standard and approach to be offered to overcome the discriminatory practices mandated by the Electoral Act towards blind and vision impaired and some other disabled electors.