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1998-1999-2000-2001
THE
PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE
OF REPRESENTATIVES
ELECTORAL AND
REFERENDUM AMENDMENT BILL (No. 1) 2001
EXPLANATORY
MEMORANDUM
(Circulated with the authority of the
Special Minister of State,
Senator the Honourable Eric
Abetz)
ELECTORAL AND REFERENDUM AMENDMENT BILL (No. 1) 2001
OUTLINE
The Bill contains technical measures,
amending both the Commonwealth Electoral Act 1918 (CEA) and the
Referendum (Machinery Provisions) Act 1984 (RMPA), arising from the
government-supported recommendations of the Joint Standing Committee on
Electoral Matters’ (JSCEM) report on the 1998 Federal Election, which was
tabled in the Parliament in June 2000.
It should be noted that the JSCEM
recommedations on which this bill is based were supported by all members of the
JSCEM.
The most notable amendments include those which will:
• allow persons who are enrolling or voting from overseas to provide a certified copy of particular sections of their current passport as verification of their identity in the case where they cannot find an authorised witness;
• provide that Divisional Returning Officers (DROs) and Australian Electoral Officers (AEOs) may reject applications for enrolment from persons who have changed their names to something ‘inappropriate’ (eg. ficticious, frivolous, offensive, obscene or assumed for an ulterior purpose). However, there will be appeal rights against a decision to reject such a name.
• allow for the provision of electronic lists of postal vote applicants to candidates and registered political parties following a general election and to members of the House of Representatives (HOR), Senators and registered political parties following a referendum held separately to a general election;
• allow for the amendment or withdrawal of a Group Voting Ticket (GVT) or Individual Voting Ticket (IVT) statement up until the closing time for lodgement of such statements;
• provide that Senate nomination deposits are to be returned to the person who paid the deposit;
• allow, prior to the close of nominations, for the substitution of a candidate in a bulk nomination, where a candidate who was part of that bulk nomination withdraws their consent, or dies prior to the close of nominations;
• provide that where a person has cast multiple declaration votes, and these are detected at the preliminary scrutiny, that only one of the votes will be admitted to the further scrutiny;
• provide that all ballot papers are to be initialled on the front top right-hand corner;
• allow for the display of GVT and IVT information in pamphlet form as well as in poster form;
• provide that the registered abbreviation of a political party name may be only an acronym or a shortened version of the party name; and
• provide the Australian Electoral Commission (AEC) with a power to
review the continuing eligibility of registered political
parties.
FINANCIAL IMPACT STATEMENT
The AEC will be
absorbing the costs of some of the measures. Funding for the remainder of the
measures will be considered in the context of the 2001-02 Budget.
NOTES ON CLAUSES
Clause 1 – Short title
1. This clause provides
for the Act to be cited as the Electoral and Referendum Amendment Act (No. 1)
2001.
Clause 2 – Commencement
2. This clause
provides that the Act will commence on a day to be fixed by Proclamation. The
AEC would be working to implement the Act, and have it proclaimed, as soon as
possible. However, should a federal election be called before the AEC is in a
position to implement the Act, the amendments would not be effective for the
purpose of that election.
Clause 3 –
Schedule(s)
3. This clause provides that each Act specified in a
Schedule is amended or repealed as set out in the Schedule, and any other item
in a Schedule has effect according to its terms.
Schedule 1
– Amendments to Commonwealth Electoral Act 1918 (CEA) and Schedule
2 – Amendments to Referendum (Machinery Provisions) Act 1984
(RMPA)
Schedule 1 items 1 and 80 – definition of
‘abbreviation’ and related transitional periods
4. This
amendment alters the definition of ‘abbreviation’ in section 4 of
the CEA in relation to registered political parties to provide that rather than
being “an alternative name of the party”, as previously defined, it
may only be “a shortened version, or an acronym, of the party’s name
and does not include an alternative name of the party.”
5. This
amendment is intended to prevent parties registering abbreviations that may be
an alternative to, or even longer, than the registered party name. The
abbreviation should be an acronym of, bear a meaningful connection to, and be no
longer than the registered party name. This amendment will ensure that the
original intention of providing for the registration of an abbreviated party
name is observed. (Registered officers may choose whether they want to have
either the party name or party abbreviation appear on ballot papers next to the
candidate’s name.)
6. In determining the length of a party name or
abbreviation, the AEC will carry out a letter count. Punctuation, such as a
comma, hyphen, apostrophe or full stop will count as one character, quotation
marks will count as two characters. Spaces between words will not be counted,
however, spaces within words being used, for example, in lieu of a hyphen, will
count as one character (eg. the space in ‘co ordinator’ would count
as one letter making a total of 12 characters).
7. The amendment is also
to apply to all abbreviations on the current Register. Parties whose
abbreviations do not comply with the amended legislation, will be given a period
of six months (not including any intervening election period) in which to
comply. Failure to comply within the specified period will result in the AEC
removing the abbreviation from the Register of Political Parties. Parties would
be notified accordingly.
8. This amendment gives effect to recommendation
53 of the JSCEM Report on the 1998 Federal Election.
Schedule 1
items 2, 16 to 19 and 81 - Power to refuse to include in the Roll
inappropriate names
9. The proposed amendments will insert new
provisions that will give Divisional Returning Officers (DROs) and Australian
Electoral Officers (AEOs) the power to reject a claim for enrolment, or change
to enrolment, made under either Part VII or Part VIII of the CEA, under a name
which is frivolous, fictitious, offensive or obscene etc.
10. There has
been an increasing tendency towards people using names which have electoral and
political, and in some cases commercial, significance for enrolment and
nomination. The placement of enrolled electors on the electoral roll or
candidates names on ballot papers, was never intended to give electors or
candidates free publicity for the particular cause they espouse or business that
they run. This is more appropriately done through advertising or the
distribution of how-to-vote material. These amendments will allow the AEC
discretion not to include on the electoral roll, and therefore ballot papers,
assumed names of dubious origin. The amendments will also allow that names
which are designed to confuse the public, such as those using the word
independent or the name of another organisation or body, can be refused. They
will also allow the AEC to refuse names which are nonsensical such those using
symbols or numbers (other than, for example, John Smith III). The AEC will have
the discretion to determine whether allowing an elector to enrol under a
particular name would be contrary to the public interest.
11. The
provision will also give DROs and AEOs the power to review existing names on the
roll and replace any that do not meet the new requirements. The name would be
replaced with the last appropriate name under which the person was enrolled. If
the person had not previously been enrolled under an appropriate name, the DRO
or AEO would seek written advice from the elector as to the last appropriate
name by which the person had been generally known in the community
(documentation would need to be provided by the person to support the use of
this name). If the elector complies with the request and the DRO or AEO is
satisfied that the name meets the new requirements, the DRO or AEO will be
required to have the elector’s enrolment altered to replace the
unacceptable name with the acceptable name. If the elector does not comply with
the request, then the DRO or AEO will be required to have the elector’s
name removed from the roll and notify the elector accordingly.
12. Decisions made by DROs under these provisions will be reviewable by
the relevant AEO and decisions made by AEOs will be reviewable by the
Administrative Appeals Tribunal (or Administrative Review
Tribunal).
13. This amendment gives effect to recommendations 8 and 10 of
the JSCEM Report on the 1998 Federal Election.
Schedule 1 items 3, 4,
6 and 14 – Enrolled voters leaving Australia and Eligibility of spouse or
child of eligible overseas elector
14. These proposed amendments will
provide that an application for registration as an eligible overseas elector is
to be made in the approved form and signed by the elector, rather than just made
in writing. Further, an application for extension of registration as an
eligible overseas elector, or as a spouse or child of an eligible overseas
elector, will be required to be made in writing and signed by the elector,
rather than just made in writing.
Schedule 1 item 5 - Enrolled
voters leaving Australia
15. The proposed amendment will provide that
an application for registration as an eligible overseas elector, if made after
departure from Australia, is to be made within two years of departure, rather
than one year. This will then be consistent with the provisions relating to
enrolment from outside Australia, which currently allow applications to be made
within the period of two years after departure.
16. This amendment gives
effect to recommendation 4 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 items 7, 8, 11 and 15 – Enrolment
from outside Australia, Eligibility of spouse or child of eligible overseas
elector and Itinerant electors
17. The proposed amendments will
provide that an application for enrolment from outside Australia, as a spouse or
child of an eligible overseas elector, or as an itinerant elector is to be made
in the approved form, signed by the elector and witnessed by a qualified person,
rather than just made in writing.
Schedule 1 items 9 and 12 -
Enrolment from outside Australia and Eligibility of spouse or child of eligible
overseas elector – alternative witnessing arrangements
18. The
proposed amendments will provide an alternative to the requirement to have an
application for enrolment from outside Australia, or as a spouse or child of an
eligible overseas elector, witnessed by a qualified person. As it may be
difficult for an elector who is overseas to find a person qualified to witness
their enrolment, the elector will be able to verify their identity by lodging,
along with their enrolment form, a certified copy of specified parts of their
current passport and a statement explaining why they were unable to find a
qualified witness.
19. This amendment gives effect to recommendation 5 of
the JSCEM Report on the 1998 Federal Election.
Schedule 1 items 10 and
13 - Enrolment from outside Australia and Eligibility of spouse or child of
eligible overseas elector – decision to reject
20. The proposed
amendments will provide that an AEO or DRO must notify an applicant in writing
of a decision to reject his or her enrolment on the basis that it does not meet
the witnessing requirements and has not been ‘saved’ by proposed new
subsections 94A(2A) or 95(2A), which set out the alternative witnessing
arrangements, as the case may be.
Schedule 1 items 20 and 21 –
Review of eligibility of parties to remain in the Register
21. The
proposed amendments insert new provisions to provide the AEC with a power to
review, at any time other than during an election period, the eligibility of
political parties to remain on the Register. Such reviews are the sole
effective means of ensuring that only entitled political parties remain
registered and enjoy the benefits of federal registration. Whilst the AEC has
conducted such reviews in the past, there has been no express legislative
authority to do so and parties could refuse to cooperate with such reviews or
fail to provide material relevant to the review to the AEC. This amendment will
ensure that the AEC has the express power to conduct such reviews so that it can
guarantee the integrity of the Register of Political Parties.
22. In
reviewing the Register, the AEC may seek certain information from parties, which
must be provided to the AEC within two months, or such longer period as the AEC
approves. Failure, by a party, to comply with the AEC’s request for
information may lead to deregistration.
23. This amendment gives effect
to recommendation 54 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 item 22 – Refund of nomination
deposits
24. The proposed amendment will provide that the AEC is to
refund a Senate nomination deposit, if it was not paid by the candidate, to the
person who paid it, or to a person authorised in writing by the person who paid
it. Currently, the CEA requires that the refund be paid to the candidate, or a
person authorised in writing by the candidate.
25. This amendment gives
effect to recommendation 15 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 item 23 – Withdrawal of consent to
nomination – substitution of candidates
26. The proposed
amendment will provide that where a candidate who was part of a bulk nomination
withdraws his or her consent to nomination prior to the close of nominations,
then the withdrawal does not affect the rest of the bulk nomination and the
registered officer of the party may amend the nomination (in the approved form)
by substituting another candidate, at any time up until the close of
nominations.
27. This amendment gives effect to recommendation 16 of the
JSCEM Report on the 1998 Federal Election.
Schedule 1 item 24 –
Death of candidate after nomination
28. The proposed amendment will
provide that where a candidate who was part of a bulk nomination dies before the
close of nominations, then the death of the candidate does not affect the rest
of the bulk nomination and the registered officer of the party may amend the
nomination (in the approved form) by substituting another candidate, at any time
up until the close of nominations in the relevant Division (which would be
extended for a further 24 hours in accordance with subsection 156(2) of the
CEA).
29. This amendment also gives effect to recommendation 16 of the
JSCEM Report on the 1998 Federal Election.
Schedule 1 items 25, 26,
27, 29, 76 and 78; Schedule 2 items 8, 9, 10, 12, 37 and 39 –
Applications for postal vote, Issue of certificate and ballot papers, and Postal
voting
30. The proposed amendments will provide an alternative to the
requirement to have a postal vote application (PVA) or a postal vote certificate
(PVC) witnessed by a qualified person, in the case where the PVA or PVC is
completed by an elector outside Australia. As it may be difficult for an
elector who is overseas to find a qualified person to witness their PVA or PVC,
the elector will be able to verify their identity by lodging, along with their
PVA or PVC, a certified copy of specified parts of their current passport and a
statement explaining why they were unable to find a qualified
witness.
31. A PVC completed in accordance with this provision is deemed
to have been witnessed as required and treated accordingly during the
preliminary scrutiny of declaration votes to determine whether the vote should
be counted.
32. This amendment gives effect to recommendation 5 of the
JSCEM Report on the 1998 Federal Election.
Schedule 1 item 28 and
Schedule 2 Item 11 – Access to an electronic list of postal vote
applicants and Restrictions on disclosure of information
33. The
proposed amendments will insert new sections 189A and 189B to the CEA and
sections 62A and 62B to the RMPA to allow the AEC to provide, as an alternative
to physical inspection, an electronic list of the names, claimed enrolled
addresses and dates of birth of postal vote applicants to candidates and
registered political parties. House of Representatives candidates will be
entitled to seek access to an electronic list for the Division in which they
stood, Senate candidates will be entitled to seek a list for the State/Territory
in which they stood and registered political parties will be entitled to seek a
list for the States/Territories in which they are organised. In the case of a
referendum that is held separately from a general election, members, Senators
and registered political parties will be able to seek access on the basis of
Division represented or State/Territory represented or State/Territory organised
in, as the case may be.
34. The same end-use restrictions that currently
apply to electoral roll information provided in electronic format to members,
Senators and registered political parties will apply to electronic lists of
postal vote applicants.
35. Further there will be penalties for misuse
or commercial use of electronic lists of postal vote applicants commensurate
with those that apply to misuse or commercial use of electoral roll information
provided in electronic format.
36. This amendment gives effect to
recommendation 12 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 items 30, 31 and 34 – Group voting tickets
and individual voting tickets
37. The proposed amendments will
provide that grouped or individual Senate candidates who have lodged a group
voting ticket (GVT) or an individual voting ticket (IVT) statement with the AEC
may amend, withdraw or replace the statement at any time up until the closing
time for lodging of such statements.
38. This amendment gives effect to
recommendation 14 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 item 32, 33 and 36 – Group voting tickets
to be displayed
39. The proposed amendments will allow the AEC to
provide a poster or a pamphlet(s) setting out the GVTs and IVTs. The order of
the GVT and IVT statements in the pamphlet is to be the same as the order of
groups on the ballot paper (similar to the requirement for the order on the
poster), with each GVT and IVT starting on a separate page and the tickets
lodged by the same group or individual on consecutive pages.
40. This
amendment will give DROs the option of providing a GVT pamphlet, rather than a
poster where convenient.
41. This amendment gives effect to
recommendation 43 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 items 35, 74 and 75; Schedule 2 items 2, 3, 35
and 36 – Ballot papers to be initialled
42. The proposed
amendments will amend section 215 of the CEA and section 26 of the RMPA to
provide that ballot papers, including photocopied ballot papers are to be
initialled on the front top right hand corner. Forms E and F of Schedule 1 of
the CEA and Forms B and C of Schedule 1 of the RMPA, which show the form of the
ballot papers, are amended to include a circle on the front top of the ballot
paper where issuing officers will be required to place their
initials.
43. This amendment gives effect to recommendation 34 of the
JSCEM Report on the 1998 Federal Election.
Schedule 1 items 37 to 40;
Schedule 2 items 4 to 7 – Compulsory voting
44. The proposed
amendments will amend section 245 of the CEA and section 45 of the RMPA to allow
the AEC to either post, or arrange for the delivery of, non-voter penalty
notices to electors at the latest known address of the elector. This will make
the sections consistent throughout as to how and where these notices are to be
sent to electors.
Schedule 1 items 41 to 43; Schedule 2 items 13 and
14 – Result of the polling in Antarctica
45. The proposed
amendments remove the requirement that votes cast by electors in Antarctica, and
transmitted to the AEO for Tasmania, are to be treated as postal votes. This
reflects the fact that Antarctic electors cast their vote by attendance at an
Antarctic station, which is a polling booth for the purpose of the election.
Antarctic electors do not make a postal vote application.
46. This
amendment gives effect to recommendation 24 of the JSCEM Report on the 1998
Federal Election.
Schedule 1 item 44 – Declaration of the
poll
47. The proposed amendment will allow DROs to hold the
declaration of the poll for their Division at a place other than the place where
nominations were required to be lodged. The AEO for the relevant State or
Territory must approve the holding of the declaration of the poll at the
alternative place. It is sometimes the case that there is insufficient room at
a DROs office to accommodate the number of people wishing to attend the
declaration of the poll. A similar amendment was made in 1998
to allow the draw for the positions on the Senate ballot paper and the
declaration of the Senate poll to be held at an alternative
location.
48. This amendment gives effect to recommendation 41 of the
JSCEM Report on the 1998 Federal Election.
Schedule 1 item 45 –
Annual returns of income and expenditure of Commonwealth
Departments
49. The proposed amendment will repeal section 311A of
the CEA. Section 311A was inserted by an Opposition amendment to section 20 of
the Political Broadcasts and Political Disclosures Act 1991. The AEC has
no role in administering this provision other than as a reporting agency like
any other. The Joint Committee of Public Accounts and Audit (JCPAA) is
responsible, under sections 63 and 70 of the Public Service Act 1999, for
approving guidelines for annual reports of departments and agencies. In the
light of this, it would be more appropriate for the JCPAA to review the
continuing relevance of and need for any continuing similar requirements as part
of its broader responsibility for annual report requirements.
50. This
amendment gives effect to recommendation 48 of the JSCEM Report on the 1998
Federal Election.
Schedule 1 items 46 to 49; Schedule 2 items 15 to
17 – Printing and publication of electoral advertisements, notices etc
51. The proposed amendments will amend section 328 of the CEA and
section 121 of the RMPA to provide that a full street address, including suburb
or locality must be given for authorisation purposes. The AEC often receives
enquiries as to what specifically an authorisation address must include and
complaints that people authorising material could not be contacted as the
address was incomplete. The address must be complete and include such things as
a street number, habitation/property name, block number for apartment blocks and
so on.
52. This amendment gives effect to recommendation 18 of the JSCEM
Report on the 1998 Federal Election.
Schedule 1 items 50 to 55 and 57
to 73; Schedule 2 items 18 to 34 – The Court of Disputed Returns and
Injunctions – Federal Court
53. The proposed amendments will
remove references to the Supreme Court of a State or Territory in sections 354
and 383 of the CEA and section 139 of the RMPA and replace them with references
to the Federal Court of Australia. A number of the amendments are
consequential.
54. The CEA was written before the establishment of the
Federal Court. It is appropriate that injunction applications relating to
federal elections be decided by the Federal Court of Australia. A practical
advantage of such a change would be that similar injunction applications could
be heard simultaneously in the one court venue and that decisions are more
likely to show greater consistency. For similar reasons, the High Court,
sitting as the Court of Disputed Returns, should remit a federal election
petition to the Federal Court only.
55. This amendment gives effect to
recommendation 56 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 item 56 – Institution of proceedings for
offences
56. The proposed amendment will repeal section 382 of the
CEA. This provision no longer performs any sensible function since the
establishment of the Commonwealth Director of Public Prosecutions, with which
the AEC routinely liaises on possible offences and prosecutions under the CEA,
in accordance with the “Prosecution Policy of the
Commonwealth”.
57. This amendment gives effect to
recommendation 57 of the JSCEM Report on the 1998 Federal
Election.
Schedule 1 items 75 and 77; Schedule 2 items 38 and 40
– Rules for the preliminary scrutiny of declaration votes (Schedule 3 of
CEA, Schedule 4 of the RMPA) – multiple declaration
votes
58. The proposed amendments will provide that where a DRO
detects, during the preliminary scrutiny, more than one declaration envelope
seeming to be from the same elector, only the first vote received by the DRO, if
that can be determined, is to be included in the further scrutiny. The first
step in the checking process would be for the DRO to determine whether the votes
had in fact been cast by the same elector by carrying out a signature check.
Any votes found not to have been signed by the elector would be excluded first
(unless the elector meets the provisions of subsection 98(3) of the CEA). If it
cannot be determined which was the first vote cast by the elector, the DRO is to
decide which vote is to be counted. If it is discovered that a declaration vote
cast by the elector has already been included in the further scrutiny, no
further votes of the elector are to be counted.
59. Follow up action
would be taken in respect of any possible breaches of offence
provisions.
60. This amendment gives effect to the government response to
recommendation 29 of the JSCEM Report on the 1998 Federal
Election.
Schedule 2 item 1 –
Interpretation
61. The proposed amendment will amend the definition
of “authorized witness” in subsection 3(1) of the RMPA to replace
“part of the Queens dominions” with “Commonwealth
country”. This amendment was to have been made as part of the
Electoral and Referendum Amendment Act 1998. However, it was incorrectly
described and therefore did not take effect.