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2010-2011-2012-2013
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ELECTORAL AND REFERENDUM AMENDMENT (IMPROVING
ELECTORAL ADMINISTRATION) BILL 2013
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
the Hon Gary Gray AO MP)
THIS REVISED EXPLANATORY MEMORANDUM TAKES ACCOUNT OF
AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE
BILL AS INTRODUCED
ELECTORAL AND REFERENDUM AMENDMENT (IMPROVING ELECTORAL
ADMINISTRATION) BILL 2013
OUTLINE
The Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2013
(the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act), the Referendum
(Machinery Provisions) Act 1984 (the Referendum Act) and the Taxation Administration Act
1953 (the Taxation Administration Act).
Following the inquiry into the conduct of the 2010 federal election, the Joint Standing
Committee on Electoral Matters (JSCEM) tabled a report entitled The 2010 Federal Election:
Report on the conduct of the election and related matters (JSCEM Report). The Bill
implements the Government response to Recommendations 3, 9, 10, 11, 15, 23, 29 and 30 of
the JSCEM Report.
The Bill contains provisions that:
set out the procedures to be followed when a ballot-box is opened prematurely, that is,
before the close of the poll, other than in accordance with the relevant provisions of the
Electoral Act and Referendum Act;
introduce into the Electoral Act and the Referendum Act a specific offence for an officer
that unlawfully interferes with a ballot box;
remove the requirement under the Electoral Act and Referendum Act for an applicant for
a pre-poll ordinary vote to complete and sign a certificate;
provide that pre-poll voting cannot commence earlier than 4 days after the date fixed for
declaration of nominations for any type of election or by-election;
brings forward the deadline for applications for postal votes by one day from the
Thursday before polling day to the Wednesday before polling day;
provide for further fixed periods of time to be provided to the augmented Electoral
Commission (as defined in section 70 of the Electoral Act) to complete its inquiries into
objections against proposed redistribution of electoral boundaries;
amend the Taxation Administration Act to allow the Commissioner of Taxation and
other taxation officers to provide some forms of taxpayer information to the Australian
Electoral Commission for the purposes of administering the Electoral Act and
Referendum Act;
omit provisions from the Electoral Act requiring a minimum font size for the
authorisation details on How-to-Vote Cards; and
make a number of related minor and technical amendments.
FINANCIAL IMPACT STATEMENT
The costs associated with implementation of the measures contained in this Bill will be
absorbed by the Australian Electoral Commission from existing resourcing.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2013
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Bill implements the Government response to Recommendations 3, 9, 10, 11, 15, 23, 29
and 30 made by the Joint Standing Committee on Electoral Matters (JSCEM) in its report
entitled The 2010 Federal Election: Report on the conduct of the election and related matters
(JSCEM Report). It provides for a range of amendments to be made to the Commonwealth
Electoral Act 1918 (the Electoral Act), the Referendum (Machinery Provisions) Act 1984 (the
Referendum Act) and the Taxation Administration Act 1953 (the Taxation Administration
Act). Of most relevance to the issue of the Bill`s compatibility with human rights are the
provisions in the Bill dealing with ballot papers and applications for postal votes and the
provision enabling the Taxation Commissioner and other taxation officers to disclose
personal information to the Electoral Commissioner in certain circumstances.
The Bill provides for procedures to be followed when a ballot-box is opened prematurely -
that is, before the close of the poll, other than in accordance with the relevant provisions of
the Electoral Act and Referendum Act. It also sets out a procedure where some ballot papers
included in such ballot-boxes may be excluded from scrutiny under Part XVIII of the
Electoral Act and Part VI of the Referendum Act. The Bill also brings forward the deadline
for applications for postal votes by one day from the Thursday before polling day to the
Wednesday before polling day. The Bill also provides for the Taxation Commissioner and
other taxation officers to disclose personal information to the Electoral Commissioner in
certain circumstances.
Human rights implications
The Bill engages Articles 17 and 25 of the International Covenant on Civil and Political
Rights (ICCPR). Each will be dealt with in turn.
Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful
interference with their privacy. This right may be limited to the extent that such limitations
are authorised by law and are not arbitrary. In order for an interference with privacy not to be
arbitrary, the interference must be in accordance with the provisions, aims and objects of the
ICCPR and be reasonable` in the particular circumstances. The United Nations Human
Rights Committee has interpreted the requirement of reasonableness` to imply that any
interference with privacy must, be proportional to the end sought and be necessary in the
circumstances of any given case` (Toonen v Australia, Communication No. 488/1992, U.N.
Doc CCPR/C/50/D/488/1992 (1994) at 8.3).
The Bill contains a provision (item 53) which will amend the Taxation Administration Act
1953 to allow the Taxation Commissioner and other taxation officers to provide some forms
of taxpayer information to the Australian Electoral Commission for the purpose of
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administering the Electoral Act or Referendum Act. The disclosure of information under
subsection 335-65(8) without a person`s consent will engage the protection from arbitrary
and unlawful interference with privacy in Article 17 of the ICCPR. This means that the
limitation or interference with a person`s privacy imposed by subsection 335-65(8) must be
for a legitimate aim, and be reasonable, necessary and proportionate to achieving this aim.
Item 53 gives effect to recent amendments to the Electoral Act that enable the Electoral
Commissioner to directly update or transfer a person`s enrolment without claim or notice
from the person and to enrol an unenrolled person without claim or notice from the person
(sections 103A and 103B). The Joint Standing Committee on Electoral Matters
recommended in this context that the relevant legislation governing the protection of personal
data collected by the Australian Taxation Office (ATO) which would prevent the ATO from
providing relevant data to the AEC be amended. Allowing the Taxation Commissioner to
disclose information for the purpose of administering the Electoral Act or Referendum Act in
this way will enable the Electoral Commissioner to ensure that people who are eligible to
vote are registered on the electoral roll.
The proposed amendments to subsection 355-65(8) are proportionate to achieving the aim of
enabling the Electoral Commissioner to ensure that people who are eligible to vote are
registered on the electoral roll. Item 2A in the table in subsection 355-65(8) provides that the
exception to the prohibition on the disclosure of protected information applies only to
information disclosed to, or obtained by, the Taxation Commissioner after the
commencement of the table item that is for the purpose of administering the Electoral Act or
Referendum Act.
This means that only information that has been disclosed to or obtained by the Taxation
Commissioner after the commencement of the provision may be disclosed to the Electoral
Commissioner. Information disclosed to or obtained by the Taxation Commissioner prior to
the commencement of the provision cannot be disclosed to the Electoral Commissioner under
this proposed amendment. Furthermore, the requirement that the disclosure be made for the
purpose of administering the Electoral Act or Referendum Act also ensures that the
disclosure is only be made where it is for those specific purposes - i.e., information cannot be
disclosed for unrelated purposes.
The amendments proposed by item 53 do not produce any deleterious effects on the right to
privacy. However, to the extent that they do limit that right, they are reasonable, necessary
and proportionate to achieving the aim of enabling the Electoral Commissioner to ensure that
people who are eligible to vote are registered in accordance with the Electoral Act and
Referendum Act. Specifically, the potential benefits associated with interfering with a
person`s privacy outweigh any deleterious effects the proposed amendments might have on a
person`s right to privacy.
Article 25 of the ICCPR
The UN Human Rights Committee (the UNHRC) states in its General Comment 25 that
Article 25 of the ICCPR recognizes and protects the right of every citizen to take part in the
conduct of public affairs, the right to vote and to be elected and the right to have access to
public service`. General Comment 25 provides guidance on these rights. Paragraph 4 of
General Comment 25 provides that any conditions imposed on the exercise of the rights
protected by Article 25 must be based on objective and reasonable criteria. Paragraph 10
4
provides that the right to vote at elections and referenda must be established by law subject
only to reasonable restrictions, such as setting a minimum age limit for the right to vote.
The Bill contains machinery provisions that set out the procedures that must be followed
where an officer becomes aware that a ballot box containing ballot papers has been opened
prematurely. These provisions do not limit the right to vote provided for by Article 25 of the
ICCPR. Rather, they provide, in order to preserve the integrity of the voting process, that
where a ballot box has been opened prematurely, the ballot papers contained in the box will
be subject to a process of investigation and identification of ballots which in the opinion of
the Australian Electoral Officer (AEO) for the State or Territory have been fraudulently
altered or otherwise interfered with so as not to reflect the voters` intention. Therefore where
it is the case that the AEO concludes that some ballot papers do not reflect the voters`
intentions, those ballot papers will be excluded from the scrutiny; other ballot papers will be
saved and counted.
Provisions excluding ballot papers contained in ballot boxes opened other than in accordance
with the Electoral Act and Referendum Act
Proposed new sections 238B of the Electoral Act and 41AB of the Referendum Act set out
the procedures that must be followed if an officer becomes aware that a ballot box containing
ballot papers has been opened prematurely. Those sections further provide that the ballot
papers contained in such a ballot box will be examined by the AEO. Depending on the facts
of each situation, the AEO may conclude that some ballot papers have been fraudulently
altered or otherwise interfered with so as not to reflect the voters` intention. In that case
those ballot papers will not be counted.
The provisions have been included to address an issue that arose during the 2010 federal
election, in which ballot-boxes in two electoral divisions had been prematurely opened before
the close of polls. Uncertainty ensued as to how the affected ballot papers should be treated.
Proposed sections 238B and 41AB may arguably be seen as limiting indirectly the right to
vote contained in Article 25 of the ICCPR, by providing that that right may be rendered
nugatory where a ballot box has been opened other than in accordance with the Electoral Act
or the Referendum Act. As outlined above, paragraph 10 of General Comment 25 requires
that any restriction on the right to vote must be reasonable`.
To the extent that sections 238B of the Electoral Act and 41AB of the Referendum Act limit
the right to vote, the provisions are reasonable. This is because the AEO will consider the
circumstances surrounding the unlawful opening of any ballot box and only exclude ballots
which do not represent the voters` intention. Excluding ballot papers from the scrutiny that
have been tampered with so as to not represent the voters` intention would maintain the
integrity of the voting process. Paragraph 20 of General Comment 25 provides, amongst
other things, that the security of ballot boxes must be guaranteed.
Although the provisions do not, themselves, guarantee the security of ballot boxes, they
provide that ballot papers affected in this way should be excluded from the scrutiny - thus
giving effect to the principle in paragraph 20 of General Comment 25 that voters should be
protected from . . . any unlawful or arbitrary interference with the voting processes.
The fact that the Australian Electoral Commission can file a petition disputing an election
under section 357 of the Electoral Act and section 102 of the Referendum Act if the
excluded ballot papers are likely to affect the result is also significant in this regard. This is
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because even if the provisions limit a person`s right to vote, if a person`s vote is likely to
affect the outcome of the election, it may still count towards any petition seeking to void the
election or referendum.
Further, proposed sections 238B and 41AB will only apply where ballot boxes have been
opened other than in accordance with the Electoral Act or Referendum Act. Following the
incidents in the 2010 federal election and subsequent amendments to policies, procedures and
training provided to electoral staff, the Australian Electoral Commission expects these
provisions to have if any, only a narrow application. For this reason, combined with the
reasons cited above in relation to the integrity of the voting process, these provisions, to the
extent they limit the right to vote contained in Article 25 of the ICCPR, are reasonable
limitations to that right.
Provisions shortening the time in which applications for postal votes can be made
Proposed amendments to sections 184(5) of the Electoral Act and 55(5) of the Referendum
Act shorten, by one day, the period in which applications for postal votes can be made, in
response to recommendation 15 of the JSCEM Report. JSCEM agreed with the Australian
Electoral Commission`s submission that bringing forward the deadline for making postal vote
applications by one day would provide a more reasonable period to dispatch postal voting
materials to applicants, with little or no material impact on the number of postal votes that are
ultimately admitted to the count.
Although the provisions effectively shorten the time in which postal vote applications can be
made, they do not limit the right to vote itself. Postal voting is only one of the means of
voting. For example, voters can still vote by other means, such as at a mobile polling booth,
pre-poll or at a polling place.
Conclusion
The Bill is compatible with human rights because it does not limit the right to vote contained
in Article 25 of the ICCPR. To the extent that it contains provisions that indirectly limit this
right (provisions dealing with the ballot papers), those provisions are nevertheless reasonable
for the purposes of paragraph 10 of General Comment 25, on the basis that they are necessary
to ensure the integrity of the voting process and will only apply in very limited
circumstances. The Bill does not limit the right to privacy contained in Article 17 of the
ICCPR. However, to the extent that they limit the right to privacy, those limitations are not
arbitrary or unlawful. They are reasonable, necessary and proportionate to achieving the
legitimate aim of enabling the Electoral Commissioner to directly enrol a person and update a
person`s enrolment.
The Hon Gary Gray AO MP, Special Minister of State
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NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Electoral and Referendum
Amendment (Improving Electoral Administration) Act 2012.
Clause 2 - Commencement
2. This clause contains a table which sets out when each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, in accordance with
column 2 of the table. It also states that any other statement in column 2 has effect according
to its terms. Items 25 and 49 have been omitted following amendments passed in the House.
Clause 3 - Schedule(s)
3. This clause specifies that each Act specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule, and any other item in a Schedule
to this Act has effect according to its terms.
Schedule 1 - Main amendments
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 72(2)
This item omits the words and any further objections. This item is consequential to item 2.
It reflects the additional time given to the augmented Electoral Commission (as established
under section 70 of the Electoral Act) by item 2 to complete its consideration of the initial
objections, if it determines that its redistribution proposal is significantly different` from that
of the Redistribution Committee (as established under section 60 of the Electoral Act).
Item 2 - Subparagraph 72(12)(d)(i)
This item omits the words may forthwith and substitutes may, before the end of the period
of 7 days beginning on the day of the announcement,. In the event that the augmented
Electoral Commission (as established under subsection 70(1) of the Electoral Act) determines
that its redistribution proposal is significantly different` from that of the Redistribution
Committee (as established under section 60 of the Electoral Act), this clause gives the
augmented Electoral Commission an additional 7 days in which to complete its consideration
of the further objections.
Item 3 - Paragraph 72(13)(a)
This item omits the words forthwith upon the making of the public announcement, and
substitutes before the end of the period of 7 days beginning on the day of the
announcement. This clause provides that a person or organisation must lodge with the
Electoral Commissioner a written further objection within the period of 7 days beginning on
7
the day on which the augmented Electoral Commission makes a public announcement under
subsection 72(1) that includes a statement under subsection 72(12)(d) of the Electoral Act.
Item 4 - After paragraph 72(13)(b)
This item inserts a new paragraph 72(13)(ba). It provides that the augmented Electoral
Commission must complete its inquiry into a further objection as soon as is practicable and,
in any event, before the end of the period of 14 days after the end of the period referred to in
new paragraph 72(13)(a) - i.e., 7 days beginning on the day on which the augmented
Electoral Commission makes a public announcement that includes a statement under
paragraph 72(12)(d) of the Electoral Act. This paragraph gives the augmented Electoral
Commission an additional period of up to 21 days to complete its inquiry into a further
objection.
Item 5 - Subsection 185(3)(b)
This item omits except in the case of an elector whose address has been excluded from the
Roll under section 104--. This item complements the proposed amendments to the
Electoral Act by the Electoral and Referendum Amendment (Improving Electoral Procedure)
Bill 2012, which, if enacted, will provide that persons who are silent electors (i.e., electors
whose addresses have been excluded from the Roll under section 104 of the Act) who change
address do not need to submit another application to be treated as a silent elector (i.e., their
registration as a silent elector will automatically by carried across with their transfer of
enrolment). By amending subsection 185(3)(b) these silent electors who also are registered
as General Postal Voters will no longer need to re-apply for registration as a General Postal
Voter (ie. their General Postal Voter registration will be carried across also).
Item 6 - Subsection 200D(4)
This item omits from subsection 200D(4) second and substitutes fourth. This item delays
the making of applications for pre-poll votes. This is in order to ensure that there is enough
time following the close of nominations to allow for ballot papers to be printed and
distributed to pre-poll voting centres for the commencement of polling.
Item 7 - Subsection 200D(5)
This item inserts after earlier than the in subsection 200D(5) fourth. This item delays the
making of applications for pre-poll votes. This is in order to ensure that there is enough time
following the close of nominations to allow for ballot papers to be printed and distributed to
pre-poll voting centres in time for the commencement of polling.
Item 8 - Section 200DC (definition of issuing officer)
This item is consequential to item 12, and repeals the definition of issuing officer`. The
concept of an issuing officer` in Division 3 of Part XVA of the Electoral Act is redundant,
on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary
vote to complete and sign a certificate has been repealed by item 12.
Item 9 - Paragraph 200DG(2)(a)
8
This item is consequential to item 12. It repeals paragraph 200DG(2)(a), on the basis that the
requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete
and sign a certificate has been repealed by item 12.
Item 10 - Paragraph 200DG(2)(c)
This item is consequential to item 12. It omits the first occurring the issuing officer and
substitutes a voting officer. Following the repeal of the requirement under section 200DH
for an applicant for a pre-poll ordinary vote to complete and sign a certificate, the concept of
an issuing officer` is redundant. It has been replaced with a voting officer`. Prior to these
amendments, an issuing officer` was a subset of voting officer (section 200DH(2) of the
Electoral Act).
Item 11 - Subparagraph 200DG(2)(c)(ii)
This item is consequential to item 12. It omits issuing officer and substitutes voting
officer. It has been included as a result of the repeal of section 200DH, which defined an
issuing officer` in Division 3 of Part XVA of the Act as a voting officer.
Item 12 - Section 200DH
This item repeals section 200DH, which requires an applicant for a pre-poll ordinary vote to
complete and sign a certificate.
Item 13 - Subsection 200DI(1)
This item is consequential to item 12. It omits The issuing officer, and substitutes A
voting officer. It has been included as a result of the repeal of section 200DH, which
defined an issuing officer` in Division 3 of Part XVA of the Act as a voting officer.
Item 14 - Subsection 200DI(2)
This item is consequential to item 12. It omits issuing officer and substitutes voting
officer. It has been included as a result of the repeal of section 200DH, which defined an
issuing officer` in Division 3 of Part XVA of the Act as a voting officer.
Item 15 - Subsection 200DJ(1)
This item is consequential to item 12. It omits the issuing officer and substitutes a voting
officer. It has been included as a result of the repeal of section 200DH, which defined an
issuing officer` in Division 3 of Part XVA of the Act as a voting officer.
Item 16 - Subsections 200DJ(2) and (3)
This item is consequential to item 12. It omits from subsections 200DJ(2) and (3) issuing
officer and substitutes voting officer. It has been included as a result of the repeal of
section 200DH, which defined an issuing officer` in Division 3 of Part XVA of the Act as a
voting officer.
Item 17 - Paragraphs 200DL(1)(a), (b) and (c)
9
This item repeals paragraphs 200DL(1)(a), (b) and (c), on the basis that the requirement
under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a
certificate has been repealed by item 12.
Item 18 - Subsection 200DL(1) (note)
This item repeals the note under subsection 200DL(1), on the basis that the requirement
under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a
certificate has been repealed by item 12.
Item 19 - Section 200DM
This item omits from section 200DM sections 200DH and 200DJ, been given a pre-poll vote
certificate for ordinary voting and and substitutes section 200DJ, been given. This reflects
the fact that the requirement under section 200DH for an applicant for a pre-poll ordinary
vote to complete and sign a certificate has been repealed by item 12.
Item 20 - Paragraph 200DM(a)
This item omits from paragraph 200DM(a) the certificate or, on the basis that the
requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete
and sign a certificate has been repealed by item 12.
Item 21 - Section 230
This item is consequential to item 12. It omits from section 230 the issuing officer and
substitutes a voting officer. It has been included as a result of the repeal of section
200DH, which defined an issuing officer` in Division 3 of Part XVA of the Act as a voting
officer.
Item 22 - Subsection 238(1)
This item is consequential to item 12. It omits from subsection 238(1) the issuing officer
and substitutes a voting officer. It has been included as a result of the repeal of section
200DH, which defined an issuing officer` in Division 3 of Part XVA of the Act as a voting
officer.
Item 23 - Subsection 238(1)
This item is consequential to item 12. It omits from subsection 238(1) the last occurring
issuing officer and substitutes voting officer. It has been included as a result of the
repeal of section 200DH, which defined an issuing officer` in Division 3 of Part XVA of the
Act as a voting officer.
Item 24- Before section 239
This item inserts, before section 239, a new provision - section 238B - which sets out the
procedures to be followed when ballot-boxes are opened before the close of the poll, other
than in accordance with the Electoral Act. Subsection 238B(1) provides that section 238B
10
applies if, in relation to an election, an officer becomes aware that a ballot-box containing
ballot papers (or ballot papers enclosed in envelopes) for an election has been opened before
the close of the poll other than in accordance with the Electoral Act. Subsections 238B(2) to
238B(13) describe the procedures that must be followed.
Section 238B has been inserted into the Electoral Act to address an issue that arose during the
2010 federal election, in which ballot-boxes in two electoral divisions had been prematurely
opened before the close of polls. It sets out the procedures to be followed where an officer
becomes aware that a ballot-box containing ballot papers for an election has been opened
before the close of the poll other than in accordance with the Electoral Act.
Proposed subsections 238B(3) to 238B(13) set out a staged process commencing where an
officer (the reporting officer) notes that a ballot box has been opened otherwise than in
accordance with the Act.
As ballot boxes may contain ballot papers or ballot papers contained in envelopes the
remaining subsections deal with both cases. In some cases, ballot papers are contained in
envelopes because, for example, in the case of pre-poll declaration votes (see s.200E) electors
mark a ballot paper but place it in an envelope which they endorse. They give the envelope
(containing the ballot paper) to the relevant officer who places the envelope in a ballot box.
At proposed subsections 238B(3) and (4) the reporting officer prepares a report, which, for
example, may include details of witnesses to the circumstances surrounding the unlawful
opening of the ballot box. This report, the parcel containing the ballot papers or envelopes
containing ballot papers, from the relevant box, the ballot box itself and any other thing that
may be relevant to the circumstances surrounding the unlawful opening of the ballot box are
sent on to the Divisional Returning Officer (DRO). Things may include normal electoral
processing reports and returns or copies of those documents.
Following this stage the material will be sent to the DRO (at subsection 238B(5)) who has a
role to examine the material and then send on to the Australian Electoral Officer for the State
or Territory in which the Division is located. The report is sent to the Divisional Returning
Officer to ensure that officer is aware that a ballot box or ballot boxes still remain to be
examined by the AEO.
At proposed subsections 238B(6) to 238B(10) the AEO must make a decision with respect to
if a ballot paper or envelope containing ballot papers are to be included in the scrutiny. The
ballot is to be included unless the AEO is satisfied that the ballot has been fraudulently
altered or otherwise interfered with so as not to reflect the voter`s intention. An envelope
containing a ballot paper is to be included unless the AEO is satisfied that the envelope has
been fraudulently altered.
At proposed subsections 238B(11) to 238B(13) the AEO must deal with the ballot papers or
envelopes and advise candidates for the relevant election of the conclusions they have
reached.
Proposed subsections 238B(14) and 238B(15) set out a special requirement on the AEO to be
responsible for the safe custody of the materials not returned to the DRO and store them until
directed by the Electoral Commissioner that the materials may be destroyed. These
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subsections protect the materials in the same way as other electoral materials are protected
under section 393A.
The inclusion in subsection 238B(1) of the words for an election makes it clear that section
238B applies to ballot papers for an election under the Electoral Act, as opposed to ballot
papers for a referendum under the Referendum Act. It is possible for ballot papers for an
election and a referendum to be placed in the same ballot box, see subsection 29(2) of the
Referendum Act. Item 32, Schedule 1 of this Bill amends the Referendum Act for equivalent
circumstances.
Item 25 - Subsection 248(1)
This item has been omitted.
Item 26 - At the end of subsection 248(2)
This item provides that for the purposes of section 238A of the Electoral Act (which deal
with discarded ballot papers) a reference in paragraph 238A(3)(b) to the Divisional Returning
Officer for the Division is taken to be a reference to the Electoral Commission.
Item 27 - Paragraph 268(1)(a)
This item is consequential to item 12. It omits the issuing officer and substitutes a voting
officer. It has been included as a result of the repeal of section 200DH, which defined an
issuing officer` in Division 3 of Part XVA of the Act as a voting officer.
Item 27A - Subsections 328B(2) and (3)
This item repeals subsections 328B(2) and (3) of the Electoral Act. These amendments
implement Recommendation 23 of the 2010 JSCEM Report which recommended that the
Government review the minimum font sizes for the authorisation details for How-to-Vote
Cards specified in section 328B of the Electoral Act. The amendments omit a specific
requirement for the minimum font size for the authorisation details on How-to-Vote Cards.
Item 27B - Paragraph 328B(4)(d)
This amendment is consequential to those amendments made by item 27A.
Item 27C - After section 339
This amendment inserts a new offence at section 339A with a penalty of six months`
imprisonment for an officer who does an act which results in the unlawful destruction of,
taking of, opening of, or interference with a ballot box or a ballot paper. Officer is defined
to include a broad range of roles in section 4 of the Electoral Act. This offence is being
inserted in response to a recommendation made in the 27 February 2013 JSCEM report and is
drawn in form from the existing offence at paragraph 339(1)(h) of the Electoral Act.
Item 28 - Paragraph 393A(1)(f)
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This item omits from paragraph 393A(1)(f) (both for ordinary voting and for declaration
voting), and substitutes for declaration voting. This reflects the repeal by item 12 of the
requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete
and sign a certificate.
Referendum (Machinery Provisions) Act 1984
Item 29 - Subsection 32(1)
This item is consequential to item 40. It omits the issuing officer and substitutes a voting
officer. It has been included as a result of the repeal of section 73CH, which defined an
issuing officer` in Division 3 of Part IVA of the Referendum Act as a voting officer.
Item 30 - Subsection 41(1)
This item is consequential to item 40. It omits the issuing officer and substitutes a voting
officer. It has been included as a result of the repeal of section 73CH, which defined an
issuing officer` in Division 3 of Part IVA of the Referendum Act as a voting officer.
Item 31 - Subsection 41(1)
This item is consequential to item 40. It omits the last occurring issuing officer and
substitutes voting officer. It has been included as a result of the repeal of section 73CH,
which defined an issuing officer` in Division 3 of Part IVA of the Referendum Act as a
voting officer.
Item 32 - Before section 41A
This item inserts before section 41A a new section 41AB in the Referendum Act, which
mirrors new section 238B of the Electoral Act. Section 41AB sets out the procedures to be
followed when ballot-boxes are opened before the close of the poll, other than in accordance
with the Referendum Act. Subsection 41AB(1) provides that section 41AB applies if, in
relation to a referendum, an officer becomes aware that a ballot-box containing ballot papers
for the referendum has been opened before the close of the poll other than in accordance with
the Referendum Act.
Like section 238B of the Electoral Act, section 41AB of the Referendum Act is being
inserted to address the potential problem of ballot-boxes being opened prematurely, before
the close of polls. Proposed subsections 41AB(3) to 41AB(13) set out a staged process to
follow where an officer (the reporting officer) notes that a ballot box has been opened
otherwise than in accordance with the Act.
As ballot boxes may contain ballot papers or ballot papers contained in envelopes the
remaining subsections deal with both cases. In some cases, ballot papers are contained in
envelopes because, for example, in the case of pre-poll declaration votes (see s.73D) electors
mark a ballot paper but place it in an envelope which they endorse. They give the envelope
(containing the ballot paper) to the relevant officer who places the envelope in a ballot box.
At proposed subsections 41AB(3) and (4) the reporting officer prepares a report, which, for
example, may include details of witnesses to the circumstances surrounding the unlawful
13
opening of the ballot box. This report, the parcel containing the ballot papers (or envelopes
containing ballot papers) from the relevant box, the ballot box itself and any other thing that
may be relevant to the circumstances surrounding the unlawful opening of the ballot box are
sent to the Divisional Returning Officer (DRO). Things may include normal electoral
processing reports and returns or copies of those documents.
Following this stage, the material will be sent to the DRO (at subsection 41AB(5)) who has a
role to examine the material and then send on to the Australian Electoral Officer (AEO) for
the State or Territory in which the Division is located. The report is sent to the Divisional
Returning Officer to ensure that officer is aware that a ballot box or ballot boxes still remain
to be examined by the AEO.
At proposed subsections 41AB(6) to 41AB(10) the AEO must make a decision with respect
to whether a ballot paper or envelope containing ballot papers are to be included in the
scrutiny. The ballot paper is to be included unless the AEO is satisfied that the ballot paper
has been fraudulently altered or otherwise interfered with so as not to reflect the voter`s
intention. An envelope containing a ballot paper is to be included in the scrutiny unless the
AEO is satisfied that the envelope has been fraudulently altered.
At proposed subsections 41AB(11) and 41AB(13) the AEO must deal with the ballot papers
or envelopes containing ballot papers and advise the Electoral Commissioner of the
conclusions they have reached.
Proposed subsections 41AB(14) and 41AB(15) set out a special requirement on the AEO to
be responsible for the safe custody of the materials not returned to the DRO and store them
until directed by the Electoral Commissioner that the materials may be destroyed. These
subsections protect the materials in the same way as other referendum documents are
protected under section 142A.
Item 33 - Subsection 73B(4)
This item inserts fourth into subsection 73B(4), after the words before the. This item
delays the making of applications for pre-poll votes. This is in order to ensure that in a
referendum that is held in conjunction with an election, voting for both the election and the
referendum will commence at the same time.
Item 34 - Subsection 73B(5)
This item omits from subsection 73B(5) second, and substitutes fourth. This item delays
the making of applications for pre-poll votes. This is in order to ensure that in a referendum
that is held in conjunction with an election, voting for both the election and the referendum
will commence at the same time.
Item 35 - Paragraph 73C(c)
This item repeals paragraph 73C(c), on the basis that the requirement under section 73CH for
an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed
by item 40.
Item 36 - Section 73CC (definition of issuing officer)
14
This item repeals the definition of issuing officer and is consequential to item 40. It has
been included as a result of the repeal of section 73CH, which defined an issuing officer` in
Division 3 of Part IVA of the Referendum Act as a voting officer.
Item 37 - Paragraph 73CG(2)(a)
This item repeals paragraph 73CG(2)(a) of the Referendum Act, on the basis that the
requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and
sign a certificate has been repealed by item 40.
Item 38 - Paragraph 73CG(2)(c)
This item is consequential to item 40. It omits the issuing officer (first occurring) and
substitutes a voting officer. It has been included as a result of the repeal of section 73CH,
which defined an issuing officer` in Division 3 of Part IVA of the Referendum Act as a
voting officer.
Item 39 - Subparagraph 73CG(2)(c)(ii)
This item is consequential to item 40. It omits issuing officer and substitutes voting
officer. It has been included as a result of the repeal of section 73CH, which defined an
issuing officer` in Division 3 of Part IVA of the Referendum Act as a voting officer.
Item 40 - Section 73CH
This item repeals section 73CH, which requires an applicant for a pre-poll ordinary vote to
complete and sign a certificate.
Item 41 - Subsection 73CI(1)
This item omits The issuing officer and substitutes A voting officer. It has been included
on the basis that section 73CH, which referred to an issuing officer, has been repealed by
item 40.
Item 42 - Subsections 73CI(2) and (4)
This item omits issuing officer and substitutes voting officer. It has been included as a
result of the repeal of section 73CH, which referred to an issuing officer, by item 40.
Item 43 - Subsection 73CJ(1)
This item omits the issuing officer and substitutes a voting officer. It has been included
as a result of the repeal of section 73CH, which referred to an issuing officer, by item 40.
Item 44 - Subsections 73CJ(2) and (3)
This item omits issuing officer and substitutes voting officer. It has been included on the
basis that section 73CH, which referred to an issuing officer, has been repealed by item 40.
15
Item 45 - Paragraphs 73CL(1)(a), (b) and (c)
This item repeals paragraphs 73CL(1), (a), (b) and (c), on the basis that the requirement under
section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate
has been repealed by item 40.
Item 46 - Subsection 73CL(1) (note)
This item repeals the notice under subsection 73CL(1), on the basis that the requirement
under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a
certificate has been repealed by item 40.
Item 47 - Section 73CM
This item omits from section 73CM sections 73CH and 73CJ, been given a pre-poll vote
certificate for ordinary voting and, and substitutes section 73CJ, been given. This reflects
the repeal by item 40 of the requirement under section 73CH for an applicant for a pre-poll
ordinary vote to complete and sign a certificate.
Item 48 - Paragraph 73CM(a)
This item omits from paragraph 73CM(a) the certificate or, on the basis that the
requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and
sign a certificate has been repealed by item 40.
Item 49 - Subsection 75(1)
This item is omitted.
Item 50 - At the end of subsection 75(2)
This item provides that for the purposes of sections 41AA of the Referendum Act (which deal
with discarded ballot papers) a reference in paragraph 41AA(3)(b) to the Divisional
Returning Officer for the Division is taken to be a reference to the Electoral Commission.
Item 51 - Paragraph 93(1)(a)
This item omits the issuing officer and substitutes a voting officer. It has been included
on the basis that section 73CH, which referred to an issuing officer, has been repealed by
item 40.
Item 51A - After section 130
This amendment inserts into the Referendum Act a new offence with a penalty of six months`
imprisonment for an officer who does an act which results in the unlawful destruction of,
taking of, opening of, or interference with a ballot box or a ballot paper. Officer is defined
to include a broad range of roles in section 3 of the Referendum Act. This offence is being
inserted in response to a recommendation made by the Joint Standing Committee on Electoral
Matters and is drawn in form from the existing offence at paragraph 130(1)(g) of the
Referendum Act.
16
Item 52- Paragraph 142A(1)(f)
This item omits from paragraph 142A(1)(f) (both for ordinary voting and for declaration
voting), and substitutes for declaration voting. This reflects the repeal by item 40 of the
requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and
sign a certificate.
Taxation Administration Act 1953
Item 53 - Subsection 355-65(8) in Schedule 1 (after table item 2)
This will allow the Australian Taxation Office to disclose protected information (within the
meaning of the Taxation Administration Act) to the Electoral Commissioner, and will help
facilitate direct updating and transferring of enrolment under the Electoral Act. Item 2A will
commence on the day after this Act receives the Royal Assent.
Item 53 introduces a new exception to section 355-25 of Schedule 1 to the Taxation
Administration Act. Subject to a range of specific exceptions to facilitate efficient and
effective government administration and law enforcement, this section makes it an offence
for taxation officers to record or disclose protected information.
This new exception ensures that it will not be an offence for a taxation officer to make a
record for, or a disclosure to, the Electoral Commissioner if the record or disclosure:
· is of information that the Commissioner of Taxation has obtained since the
commencement of this item; and
· is for the purpose of administering the Electoral Act or the Referendum Act
This will allow the Australian Taxation Office (ATO) to provide otherwise protected
information (such as the names and addresses of taxpayers) to the Electoral Commissioner,
with a view to maintaining the veracity of the roll of electors.
Example 1.1
In May 2012 Ray lodged an application for a tax file number with the ATO, in which he
advises the Commissioner of Taxation that he resides at 69 Joslin Street. As the
Commissioner obtains Ray`s address prior to the commencement of Item 53 of this Bill, this
exception would not apply in relation to this information.
In July 2014 Ray lodges an income tax return with the ATO, and again advises the
Commissioner that he resides at 69 Joslin Street. Assuming that item 53 of this Bill
commences prior to Ray lodging this income tax return, this exception would apply in
relation to Ray`s address. Consequently, a taxation officer could provide this information to
the Electoral Commissioner for the purposes of administering either the Electoral Act or the
Referendum Act without committing an offence under section 355-25 of Schedule 1 to the
Taxation Administration Act.
Part 2 - Application provisions
Item 54- Application provisions
17
This item contains application provisions. Sub-item 54(1) provides that the amendments
made by Schedule 1 (except items 1-5 and 53) apply in relation to elections and referendums
the writs for which are issued on or after the commencement of this item. Subitem 54(2)
provides that the amendments made by items 1 to 4 apply in relation to notices published
under paragraph 68(1)(c) of the Electoral Act (relating to a proposed redistribution of a State
or Territory) on or after the commencement of item 38. Subitem 54(3) provides that the
amendment made by item 5 (silent electors) applies in relation to claims for transfer of
enrolment made on or after the commencement of that item.
Schedule 2 - Amendments commencing on 1 January 2014
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1- Subsection 184(5)
This item omits from subsection 184(5) the words Thursday that is 2 days, and substitutes
Wednesday that is 3 days. This item brings forward the deadline for applications for postal
votes by one day from the Thursday 2 days before polling day to the Wednesday 3 days
before polling day. This is a practical amendment that reflects the reality that there is limited
chance of electors receiving postal voting materials that are sent out after the current deadline
of 6pm on the Thursday before polling day. The existing deadline is potentially misleading
to electors who might expect that as long as they have met the deadline, they will receive
their postal voting materials in time for them to be able to cast their vote before the close of
polling.
Item 2 - Subsection 188(4)
This item is consequential to item 1 and omits from subsection 188(4) the words Thursday
that is 2 days, and substitutes Wednesday that is 3 days. This item reflects the change in
the time in which applications for postal votes must be made under subsection 184(5) -
namely that applications must be made by the Wednesday that is 3 days before the polling
day in an election.
Item 3 - Subsection 188(4) (note)
This item is consequential to item 1 and omits from the note under subsection 188(4) the
words Thursday that is 2 days, and substitutes Wednesday that is 3 days. This item
reflects the change in the time in which applications for postal votes must be made under
subsection 184(5) - namely, that applications must be made by the Wednesday that is 3 days
before the polling day in an election.
Referendum (Machinery Provisions) Act 1984
Item 4 - Subsection 55(5)
This item omits from subsection 55(5) Thursday that is 2 days, and substitutes Wednesday
that is 3 days. This item brings forward the deadline for applications for postal votes by one
18
day from the Thursday 2 days before polling day to the Wednesday 3 days before polling
day. This is a practical amendment that reflects the reality that there is limited chance of
electors receiving postal voting materials that are sent out after the current deadline of 6pm
on the Thursday before polling day. The existing deadline is potentially misleading to
electors who might expect that as long as they have met the deadline, they will receive their
postal voting materials in time for them to be able to cast their vote before the close of
polling.
Item 5 - Subsection 61(2B)
This item is consequential to item 4 and omits from subsection 61(2B) Thursday that is 2
days, and substitutes Wednesday that is 3 days. This item reflects the change in the time
in which applications for postal votes must be made under subsection 55(5) - namely that
applications must be made by the Wednesday that is 3 days before the polling day in an
election.
Item 6 - Subsection 61(2B) (note)
This item is consequential to item 4 and omits from the note under subsection 61(2B)
Thursday that is 2 days, and substitutes Wednesday that is 3 days. This item reflects the
change in the time in which applications for postal votes must be made under subsection
55(5) - namely that applications must be made by the Wednesday that is 3 days before the
polling day in an election.
Part 2 - Application provision
Item 7 - Application provision
This item provides that the amendments made by this Schedule apply in relation to elections
and referendums the writs for which are issued on or after the commencement of this
Schedule (i.e., 1 January 2014).
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