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2002-2003-2004
THE PARLIAMENT OF
THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
ELECTORAL AND
REFERENDUM AMENDMENT (ENROLMENT INTEGRITY AND OTHER MEASURES) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated
with the authority of the Special Minister of State,
Senator the Hon Eric
Abetz)
OUTLINE
The Bill contains reform measures amending the
Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum
(Machinery Provisions) Act 1984 (the Referendum Act), arising from the
Government response to the Joint Standing Committee on Electoral Matters’
(JSCEM) report on the 2001 federal election. The Government response was tabled
in Parliament on 16 October 2003.
The Bill includes amendments of the
Electoral Act and the Referendum Act contained in the Electoral and Referendum
Amendment (Roll Integrity and Other Measures) Bill 2002 which is currently
before the Parliament. That Bill gave legislative effect to the Government
response to the JSCEM’s report on the 1998 federal election. The response
to that report was tabled on 1 March 2001.
Measures that implement the
Government response to recommendation 5 of the JSCEM's report on the integrity
of the electoral roll: User Friendly, Not Abuser Friendly are included in
this Bill. The response was tabled on 4 October 2001.
The main amendments will:
• allow for the making of regulations
requiring proof of identity or address for applicants for enrolment, or
applicants wishing to change their enrolment details;
• allow for the
making of regulations for similar proof of identity and address requirements for
electors claiming a provisional vote because their names do not appear on the
certified list on election day;
• enable the Australian Electoral
Commission (AEC) to obtain information from prescribed State and Territory
officers in relation to the proof of identity and address
arrangements;
• allow for the close of rolls for new electors to be
6.00 pm on the day on which the writ for an election is issued, and 8.00 pm
three working days after the issue of the writ for those amending their
enrolment details;
• introduce enrolment based on residence at an
address in a subdivision;
• include the sex and date of birth of
electors on the certified list as a check on identity when voting;
• remove the right to vote from prisoners serving a sentence of
full-time detention;
• increase a number of financial disclosure
thresholds to $3,000;
• allow registered political parties and
independent members of parliament to be provided, on request, with certain
information about where electors voted on election day;
• remove the
requirement for broadcasters and publishers to lodge returns with the AEC on
electoral advertising during an election period; and
• increase the
penalty for multiple voting and make each additional vote a separate offence, as
well as increase the penalty for false witnessing of enrolment forms.
The
Bill includes a number of other amendments including restricting
scrutineers’ activities in relation to assisted votes, reinstatement on
the roll, and registration of party names.
The early close of rolls is estimated to cost $50,000 in an election year
and $250,000 in a non-election year. This would cover the cost of a targeted
information campaign to ensure that electors are fully informed of the
requirements of the new provisions.
Implementation of proof of identity
and address at enrolment is estimated to cost $2.2 million in 2003-04, $3.8
million in 2004-05, $2.7 million in 2005-06, $2.3 million in 2006-07 and
$2.4 million in 2007-08. These funds will cover the cost of establishing
technology links with State and Territory databases, roll management system
redesign and roll out, staff training, new enrolment forms, and an information
campaign to inform electors of the new enrolment requirements.
It is
estimated that the cost of implementation of proof of identity and address for
provisional voting will be $0.8 million in 2004-05 and $0.9 million in
2007-08. These funds will cover the redesign of the certified lists, the
redesign of the declaration certificate for provisional voting, staff training,
and additional staff for polling booths.
NOTES ON CLAUSES
Clause 1 – Short
title
1. This clause provides for the short title of the
Act.
Clause 2 – Commencement
2. This clause
sets out the commencement provisions for the Bill. Sections 1 to 3 and item 103
of Schedule 1 will commence on the day the Bill receives Royal
Assent.
3. Items 1 to 4 of Schedule 1 commence on the later of the
28th day after the Bill receives Royal Assent or the commencement of
item 3 of Schedule 1 to the Electoral and Referendum Amendment (Access to
Electoral Roll and Other Measures) Act 2004.
4. The following items of Schedule 1 commence on Proclamation: 5, 9, 10,
12 to 13, 16 to 17, 19, 37, 42, 45, 62 to 63, 78, 106 to 109 and 116. The
reasons for this commencement provision are explained at the relevant items.
5. Items 104 and 105 of Schedule 1 are taken to have commenced immediately after the commencement of items 764 and 765 of Schedule 1 to the Public Employment (Consequential and Transitional) Amendment Act 1999. That Act commenced on 5 December 1999. These items are technical in nature (correct spelling errors) and it is envisaged that this retrospective commencement date will have no detrimental effect.
6. The remaining items commence 28 days after the Bill receives Royal
Assent.
Clause 3 – Schedule(s)
7. 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
Schedule 1 - Items 1 to 4 – Provision of voting information
8. These items amend section 90B of the Electoral Act (as proposed
to be amended by the Electoral and Referendum Amendment (Access to Electoral
Roll and Other Measures) Bill 2004) to provide for registered political parties,
Senators who are not members of a registered political party and members of the
House of Representatives who are not members of a registered political party to
obtain information, on request, about where electors voted at an election. The
information will be provided without charge.
9. Items 1 to 3 amend the
table at new subsection 90B(1) to insert new entries which specify who is
entitled to receive the voting information.
10. Item 4 amends new subsection 90B(10) to specify the information which is to be provided to registered political parties and independent members of parliament. The information includes the names and addresses of electors who voted at an election, whether each elector voted at a polling place or by some other means, and if the elector voted at a polling place for the Division for which they are enrolled, the location of that polling place. Information about itinerant, overseas and silent electors will not be provided.
11. This amendment was foreshadowed in the additional comments contained
in the Government response to the JSCEM's inquiry into the 2001 federal election
and is based on section 123 of the Victorian Electoral Act
2002.
Schedule 1 - Item 5 – Access to State and Territory
databases for the purposes of checking the identity and address of applicants
for enrolment
12. Subsection 92(1) of the Electoral Act contains a demand power for the AEC
to obtain information from all Australian Government and certain State and
Territory Government agencies for the purpose of preparing, maintaining or
revising the rolls.
13. Item 5 amends subsection 92(1) to include
prescribed officers of State and Territory Governments among those from whom the
AEC can obtain information. The amendment is consequential to the proposed
amendments which provide for regulations to be made to require applicants for
new enrolment and those wishing to change their enrolment details (names or
addresses) to provide proof of identity and address. Those provisions are
discussed in more detail at paragraphs 61 to 69 and 102 to 105
below.
14. The Government response to recommendation 1 of the JSCEM's
inquiry into the 2001 federal election indicated that the implementation of the
recommendation would take place in consultation with the States and Territories.
This amendment will allow the AEC access to relevant State and Territory
databases, such as driver’s licence databases, to verify the identity and
address of applicants for enrolment once agreement has been reached with the
States and Territories on a common proof of identity and address
scheme.
15. This amendment will commence on proclamation with other
provisions relating to proof of identity and address contained in this
Bill.
16. This amendment gives effect to the Government response to
recommendation 1 of the JSCEM report on the 2001 federal
election.
Schedule 1 - Items 6 to 7, 18, 26, 46, 71, 95 and 126
– Removal of prisoners’ voting rights
17. Items 6 to 7
amend section 93 and item 18 repeals section 96A of the Electoral Act to
remove the right to enrol from all persons serving a term of imprisonment for an
offence against the law of the Commonwealth or a State or Territory. Under the
current provisions, people serving a sentence of five years or longer are not
entitled to enrol and vote. For clarity, item 7 includes an express definition
of a person ‘serving a sentence of imprisonment’ in section
93.
18. Only people who are serving a sentence of full-time detention
will no longer be eligible to enrol and vote. People being detained on remand,
those serving alternative sentences such as periodic or home detention, those
serving a non-custodial sentence or people released on parole may still be
eligible to enrol and vote.
19. Item 26 is an amendment that removes from
subsection 99(3) a reference to section 96A, as this section will be repealed by
item 18.
20. Item 46 amends section 109 of the Electoral Act which
requires the Controller-General of Prisons to forward to the AEC the list of
convicted prisoners imprisoned for five years or longer for any offence. The
amendment will ensure that details of all prisoners serving a sentence of
full-time detention will be forwarded to the AEC.
21. Item 71 amends the grounds for applying for registration as a general postal voter in section 184A of the Electoral Act to clarify that prisoners within the meaning of new subsection 93(8) are not eligible to register as general postal voters.
22. Item 95 amends clause 9 of Schedule 2 of the Electoral Act, and item
126 amends clause 9 of Schedule 3 of the Referendum Act, to provide that a
person will no longer have a ground to apply for a postal or pre-poll vote where
he or she is serving a sentence of imprisonment.
23. These amendments
give effect to the Government response to recommendation 24 of the JSCEM
report on the 1996 federal election.
Schedule 1 - Items 8, 11, 14, 15,
20 to 25, 27 to 36, 38 to 41, 43, 47, 48 to 57, 96 to 102, 127 to 132, 133 and
135 – Enrolment in respect of an address
24. These items amend the Electoral Act to provide that electors must be living at an address in a subdivision, and have lived at that address for at least a period of one month in order to be entitled to have their name placed on the roll. These amendments implement the Government response to recommendation 7 of the JSCEM's report on the 1998 federal election.
25. Items 20 to 25 and 34 to 36 amend sections 99
and 102 of the Electoral Act to provide that an
elector’s entitlement for enrolment will be in respect of residence at an
address within a subdivision (rather than just residence within the
subdivision), and the elector’s name will be placed on the roll in respect
of residence at that address.
26. Items 8 and
11 will amend sections 94A and 95 of the Electoral
Act which deals with the entitlement to enrolment for
persons applying from overseas under section 94A, and the spouse or child
of an eligible overseas elector applying for enrolment under section 95. These
amendments are consequential to the amendments that will provide that enrolment
will be in respect of an address within a subdivision. Electors who enrol from
overseas or who enrol as a spouse or child of an eligible overseas elector are
placed on the roll for a subdivision only, not for a particular address within a
subdivision. This will not change under the proposed amendments. The
amendments simply update the entitlement provision from requiring notional
residence in a subdivision to requiring notional residence at an address.
Accordingly, persons applying for enrolment under sections 94A or 95 will be
entitled to enrolment within a subdivision where they satisfy the criteria
outlined in section 94A or 95, and are not qualified for enrolment but would be
qualified if they resided at an address within a subdivision and had done so for
at least a month. These amendments have no substantive effect on how
applications for enrolment from outside Australia or as a spouse or child of an
eligible overseas elector are processed.
27. Paragraph 95AA(1)(b)
defines a ‘qualified Norfolk Islander’ for the purposes of
enrolment. Items 14 and 15 amend paragraph 95AA(1)(b) to refer to
qualifications for enrolment on the basis of residence at an address in a
subdivision, rather than residence within a subdivision alone. Like eligible
overseas electors, Norfolk Islanders are placed on the roll for a subdivision
only, not for a particular address within a subdivision. These amendments are
consequential to the amendments that will provide that enrolment will be in
respect of an address within a subdivision. These
amendments have no substantive effect on how applications for enrolment as a
Norfolk Islander are processed.
28. Item 27 is a consequential
amendment to subsection 99(5) to provide that once a person is enrolled, the
validity of their enrolment cannot be questioned on the grounds that, prior to
applying for enrolment, the person had not in fact lived at the relevant address
in the subdivision for a period of one month.
29. Items 28 to 30 amend section 99A to provide that where a person is
not eligible for enrolment as the person is not an Australian citizen, but has
applied for citizenship (which is pending), and would otherwise be entitled for
enrolment in respect of residence at an address within a subdivision, the person
may make a claim for provisional enrolment.
30. Item 31 amends section
100 to provide that where a person is 17 years of age and would otherwise be
entitled to enrolment in respect of residence at an address within a subdivision
if he or she were 18 years of age, the person may make a claim to have his or
her name placed on the roll.
31. These amendments are consequential to
the proposed amendments at items 20 to 25 and 34 to 36 providing that enrolment
will be in respect of an address rather than for a subdivision.
32. Item 32 repeals and substitutes a new subsection 101(5) of the
Electoral Act to provide that where an elector changes his or her place of
living from one address within a subdivision to another address within the same
subdivision, and has lived at the new address for a period of one month, the
elector must provide to the Divisional Returning Officer written notice of the
new address within 21 days (that is, within 21 days after having resided at
the new address for one month).
33. Item 33 amends subsection 101(6) to
change the penalty for failing to enrol or advise a change of address within
21 days from $50 to 1 penalty unit.
35. Section 104 provides for an elector to apply for
his or her address not to be shown on the roll. Item 38 amends section 104 of
the Electoral Act to provide that where the address
of an elector is not shown on the roll due to a request made under subsections
104(1) and (2) (also known as ‘silent’ enrolment), the person is
still taken to be enrolled for the ‘silent’
address.
36. This provision is designed to ensure that, as a
result of the proposed amendments relating to enrolment in respect of an
address, the objection provisions work consistently across all enrolment types.
Where it can be shown that a person with ‘silent’ enrolment no
longer lives at their enrolled address (whether or not that address is actually
shown on the roll), and has not lived at that address for a period of at least
one month, an objection may be lodged against the person’s
enrolment.
Alteration of rolls
37. Items 39 and 40 amend
subsection 105(1) to insert a new subsection that allows a Divisional Returning
Officer, in response to a written notice given by an elector, to alter the
original address of the elector on the same subdivision roll.
Item 41 adds
a new subsection 105(1A) which states that where an address has been altered
under paragraph 105(1)(ba) or 105(1)(h) of the Electoral Act, then the Electoral
Act has effect as if the elector’s name had been placed on the roll in
respect of the altered address.
38. Item 43 adds a new subsection
105(3A) which states that despite the effect of subsection 105(3) of the
Electoral Act, the address of the elector must not be altered under paragraph
105(1)(ba) unless the Divisional Returning Officer is satisfied that the elector
has lived at the new address for a period of at least one
month.
39. These amendments are consequential to the proposed amendments
at items 20 to 25 and 34 to 36 providing that enrolment will be in respect of an
address rather than for a subdivision.
Antarctic
Electors
40. Item 47 inserts a definition of ‘Antarctic
elector’ in Part IX of the Electoral Act in subsection 113(1). The Part
deals with objections to the roll. The definition is the same as that in Part
XVII.
41. This is consequential to the amendments at items 25 and 27 to
35 to ensure that the AEC is not required to object to the enrolment of a person
registered as an Antarctic elector, as the AEC is aware that the Antarctic
elector will be absent from his or her enrolled address for a period of time.
42. These amendments are also consequential to the proposed amendments
at items 20 to 25 and 34 to 36 providing that enrolment will be in respect
of an address rather than for a subdivision.
Objections to
enrolment
43. Items 48 to 57 amend sections 113, 114, 115 and 118 of
the Electoral Act so that an objection to an elector’s enrolment (whether
an official or private objection) can take place on the ground that the elector
no longer lives at their enrolled address, and has not lived at their enrolled
address for a period of at least one month. Under current legislation, an
elector’s enrolment can be objected to on the ground that the person is
not entitled to be enrolled for the subdivision, that is, the elector does not
live in the subdivision and has not lived in the subdivision for at least one
month, or does not meet the enrolment qualifications on other grounds.
44. These amendments expand on these provisions, so that non-residence
at the enrolled address (even where it can be shown that the elector has moved
within the subdivision) is now a ground for objection, except where the elector
is enrolled as an Antarctic elector.
45. An objection must not be made to
an elector’s enrolment on the ground that the elector no longer qualifies
for enrolment for the subdivision (under subsection 114(1) for private
objections and subsection 114(2) for official objections), if the objection
could be made on the ground that the person no longer lives at their enrolled
address. That is, if the elector no longer lives at their enrolled address, as
well as no longer living within their enrolled subdivision, any objection to
their enrolment must be made on the ground that they no longer live at their
enrolled address.
46. These items are related to items 8, 11, 14, 15, 20
and 21 (enrolment in respect of an address), in that it is proposed that an
elector will be enrolled in a subdivision in respect of living at an address
within that subdivision, and where the elector does not live at that address, an
objection may be lodged against his or her enrolment.
47. Items 48 and
49 are consequential amendments to section 113 of the Electoral Act to include
cross-references to the amended sections.
48. Item 50 amends section 114 to provide that a person enrolled for the same
subdivision may object to an elector’s enrolment (defined as a
‘private objection’) on the basis that the elector no longer lives
at their enrolled address, and has not done so for the past month.
49. Item 51 amends section 114 to provide that the Divisional Returning
Officer for the Division must object to an elector’s enrolment (defined as
an ‘official objection’) where there are reasonable grounds for
believing that the elector does not live at their enrolled address, and has not
lived at that address for a period of one month.
50. Item 52 is a
consequential amendment to section 115 of the Electoral Act to include
cross-references to section 114 as amended.
51. Item 53 repeals subsection 115(3) of the Electoral Act which is no longer
required as it applies to objections to enrolment in a subdivision rather than
for an address.
52. Item 54 amends subsection 118(3) of the Electoral Act
to limit the subsection so that it only relates to subsections 114(1), 114(1A)
and 114(2).
53. Item 55 amends section 118 to provide that where an
elector’s name has been placed on the roll in respect of a particular
address, an objection has been lodged, and the elector does not live at the
address and has not lived at the address for at least the last month, the
Divisional Returning Officer will be required to remove the elector’s name
from the roll for that subdivision, providing the elector is not enrolled as an
Antarctic elector.
54. Antarctic electors have been excluded as they are
able to remain on the roll at their enrolled address if they have registered
with the AEC as working in Antarctica. Therefore neither an elector, nor a
Divisional Returning Officer can object to their enrolment on the basis that
they are not living at their enrolled address. Items 56 and 57 are
consequential amendments.
Provisional voting in elections and
referendums
55. Items 96 to 102 and 127 to 132 amend Schedule 3 of
the Electoral Act and Schedule 4 of the Referendum Act to provide that if an
elector casts a provisional vote at an election because the elector’s name
has been removed from the roll since the last election by objection on the
ground that he or she no longer lived at their enrolled address (as outlined in
items 25 and 27 to 35 – Objections to enrolment), and after making
enquiries the Divisional Returning Officer is satisfied that the elector has
moved within the Division for which he or she was enrolled without re-enrolling,
the provisional vote for both the House of Representatives and the Senate will
be admitted to scrutiny. If the elector has moved outside the Division for
which he or she was enrolled, but is still residing within the same State or
Territory, the provisional vote for the Senate only will be admitted. If the
elector has moved outside the State or Territory for which he or she was
enrolled, the provisional vote will not be admitted (that is, neither the House
of Representatives nor Senate ballot paper will be counted).
56. If an
elector casts a provisional vote at a referendum because the elector’s
name had been removed from the roll since the last election due to objection
action on the ground that they no longer live at his or her enrolled address (as
outlined in items 25 and 27 to 35 – Objections to enrolment), and after
making enquiries the Divisional Returning Officer is satisfied that the elector
has moved either within the Division or within the State or Territory for which
he or she was enrolled without re-enrolling, the provisional vote will be
admitted to scrutiny (that is, the referendum ballot paper will be counted).
57. In all cases the elector’s provisional vote will not be
admitted to scrutiny if there has been a redistribution of the State or
Territory that includes the Division since the last election, or an election
(excluding the election to which the scrutiny relates) has been held since the
removal of the elector’s name from the roll.
Transitional
provisions
58. Item 133 provides that where a person’s name
and address were on the roll for a subdivision immediately before the
commencement of this item, the Electoral Act will have effect after commencement
of these provisions as if the person’s name had been placed on the roll in
respect of that address. As section 4 of the Referendum Act states that the
entitlement to vote at a referendum is the same as if the referendum were an
election, the Referendum Act will also have effect after commencement of these
provisions as if the person’s name had been placed on the roll in respect
of that address.
59. Item 133 is inserted to avoid doubt. This item does
not freeze the electoral roll at the time of commencement. The removal or
deletion of a person’s name from the roll and alteration of the roll in
accordance with the Electoral Act are not prevented by this
item.
60. Item 135 provides that any objection action under Part IX of
the Electoral Act that had begun prior to the commencement of this item shall
continue until finalised as if the amendments to Part IX had not been made.
Schedule 1 - Items 9, 12, 16, 19 and 42 – Proof of
identity and address at enrolment
61. These items provide for proof
of identity and address as prescribed by regulations to be required for all
applicants for enrolment and all electors seeking to change their names or
addresses on the roll. Applicants for particular types of enrolment status who
do not require a change to enrolled names and addresses, such as applicants for
general postal voter status, will not be required to provide proof of identity
and address. Electors whose enrolments are amended administratively by the AEC
will also not be required to provide proof of identity and
address.
62. In its response to the JSCEM’s report on the 2001
federal election, the Government indicated that it favoured the use of a
driver’s licence number to verify an applicant’s identity and
address when enrolling or changing enrolment details. The driver’s
licence number would be included on the enrolment form, with the AEC checking
the details from records on State and Territory databases or from details
provided by the States and Territories.
63. Alternate forms of acceptable
identification documentation could be provided by applicants who did not have a
driver’s licence. Where no identification documentation was available,
only people in a prescribed class would be able to provide written references
supporting an enrolment application.
64. Regulations specifying the
detail of the proof of identity arrangements will be developed in consultation
with the States and Territories. Privacy issues will be taken into account.
Complementary State and Territory legislation may also be required to ensure
similar arrangements are in place for a consistent approach to the electoral
process across Australia. This would also preserve the Joint Roll Agreements
with the States and Territories.
65. As the provisions are subject to
regulations being developed in consultation with the States and Territories and
possible complementary State and Territory legislation, all items in this Bill
relating to proof of identity and address are to commence on proclamation. This
would be expected to occur once the regulations had been made and all States and
Territories were ready to proceed with similar arrangements, including
complementary legislation where necessary.
66. Items 9 and 12 amend
sections 94A and 95 of the Electoral Act to provide for regulations to specify
proof of identity and address requirements for applicants for enrolment from
overseas. Item 16 amends section 96 with similar provisions for applicants for
itinerant enrolment. The proof of identity and address requirements for
applicants from overseas and itinerant applicants will be tailored for their
specific circumstances.
67. Item 19 amends section 98 of the Electoral
Act to provide for regulations to specify proof of identity and address for
applicants for enrolment.
68. Item 42 amends section 105 of the Electoral
Act to provide for regulations to specify proof of identity and address for
electors who inform a Divisional Returning Officer in writing that they have
moved address within a Division.
69. These amendments give effect to the
Government response to recommendation 1 of the JSCEM report on the 2001
federal election.
Schedule 1 - Items 10, 13, 17, 37, 45, 62, 63, 106
to 109 – Early close of rolls
70. These items change
the time when the electoral rolls close prior to an election for the addition of
new enrolments and changes to existing enrolment details. Section 155 of
the Electoral Act provides for the rolls to close seven days after the writs for
an election have been issued.
71. The amendments provide for the rolls to close:
• for new enrolments – at 6.00 pm on the day the writs are
issued; and
• for people currently, or previously, enrolled who wish to
change their enrolment details – at 8.00 pm three working days after
those writs have been issued.
72. Enrolment applications will not be
added to the rolls if received after these times. Details can be added to the
rolls after the election.
73. The early close of rolls will allow the AEC
sufficient time to verify applicants’ details and thereby maintain the
integrity of the roll.
74. Items 10, 13, 17 and 45 amend sections 94A, 95, 96 and 105 of the
Electoral Act, respectively. These sections deal with enrolment from overseas,
enrolment of the spouse or child of an eligible overseas elector, enrolment of
itinerant electors, and enrolment and changes of enrolment by
electors.
75. Item 37 repeals and substitutes a new subsection 102(4) of
the Electoral Act to prevent a Divisional Returning Officer from considering a
claim for ordinary enrolment when the rolls have closed.
76. Items 62 and
63 amend section 155 of the Electoral Act and items 108 and 109 amend section 9
of the Referendum Act to provide for the close of rolls three working days after
the issue of the writs. The earlier close for new electors is specified in
relevant provisions relating to enrolment or change of enrolment as set out
above.
77. Items 106 and 107 are consequential amendments to section 4 of
the Referendum Act and prevent the AEC from processing a claim for enrolment
during the period after the rolls have closed prior to a
referendum.
78. These items commence on proclamation. Complementary
State legislation will be required to enable proclamation and implementation of
the provisions. The writs for the State Senate elections are issued under State
legislation, not the Electoral Act. If the provisions in this Bill were to be
proclaimed before complementary amendments have been made to the State Senate
legislation, it is possible that there could be different close of rolls dates
for the House of Representatives and Senate elections in those States.
Accordingly, these provisions will not take effect until complementary
amendments have been made to the relevant State Senate legislation. As the
writs for the Territory Senate elections are issued under the Electoral Act,
these elections would not be affected.
79. These amendments give effect
to the Government response to recommendation 3 of the JSCEM’s report
on the 1998 federal election.
Schedule 1 - Item 44 –
Reinstatement on the Roll
80. Subsections 105(4) and 105(5) of the
Electoral Act require that an elector who casts a provisional vote at an
election or referendum because their name does not appear on the certified list
on polling day, and who is subsequently found to be eligible to cast a vote for
the subdivision in which they voted, be reinstated to the roll for an address in
the subdivision for which they claimed a vote. Electors must be reinstated on
the roll regardless of whether the Divisional Returning Officer knows their
current address. This can result in electors being reinstated to addresses
where they no longer live.
81. Item 44 repeals subsection 105(4) and
105(5) of the Electoral Act and replaces these with a new subsection 105(4).
New subsection 105(4) will allow a Divisional Returning Officer to undertake a
review of the elector’s enrolment to determine whether the elector is
entitled to be enrolled for that subdivision. If the Divisional Returning
Officer can determine that the elector is entitled to be enrolled for the
subdivision, then the Divisional Returning Officer may reinstate the elector to
an address in that subdivision.
82. This amendment gives effect to part
of the Government response to recommendation 2 of the JSCEM's inquiry into the
2001 federal election.
Schedule 1 - Items 58, 59, 60, 61 and 134
– Reasonable person test for party names
83. These items insert
a new test in sections 129 and 134A of the Electoral Act to prevent the
registration of political parties, and, in certain cases, continued registration
of political parties when their names are similar to those of registered
political parties.
84. Section 129 of the Electoral Act contains a number
of tests a party’s name must pass before the party can be registered.
Item 58 will amend section 129 to require that a party cannot be registered if
its name suggests to a reasonable person a relationship or connection with a
registered political party that does not exist.
85. Section 134A of the
Electoral Act contains procedures for a registered political party to object to
the name of another, related and similarly named, registered political party
that was registered after the objecting party when the relationship between the
two parties has ceased. Item 59 will amend paragraph 134A(1)(a) to require
that, in assessing the complaint, the Electoral Commission will have to
determine whether a reasonable person would decide that the name of the party
being objected to suggests a connection or relationship with the objecting party
that does not in fact exist.
86. Items 60 and 61 are consequential
amendments.
87. Item 134 is an application provision that will protect
currently registered political parties from the new test.
88. This is a
Government-initiated amendment.
Schedule 1 - Items 64 to 66 and 70
– Return of nomination deposit
89. Items 64 to 66 and 70
amend sections 173 and 178 of the Electoral Act to provide that where the
deposit paid by, or on behalf of, a candidate at a House of Representatives or
Senate election is to be returned, it is returned to the person who paid it or
to a person authorised in writing by the person who paid it, rather than to the
candidate or a person authorised in writing by the candidate. In the case of
the death of a candidate who paid the deposit himself or herself and had not
authorised the return of the deposit to another person in writing, the deposit
will be returned to the personal representative of the candidate.
90. These amendments give effect to the Government response to
recommendation 15 of the JSCEM’s report on the 1998 federal
election.
Schedule 1 - Items 67 to 69 – Declaration of
nominations
91. For a House of Representatives election, the
declaration of nominations must be made at the place of nominations. These
amendments to subsection 176 will allow the place of declaration of nominations
for House of Representatives elections to be at a place determined by the
Australian Electoral Officer. This will be consistent with current practice in
relation to the declaration of Senate nominations. The Australian Electoral
Officer will be able to determine a declaration place in relation to each
Division for House of Representatives elections (which may be the same place for
multiple Divisions), as well as a declaration place for the State or Territory
for Senate elections.
92. This will enable the declaration to be held at
a place other than at the offices of Divisional Returning Officers or Australian
Electoral Officers, where space may be limited.
93. These amendments give
effect to the Government response to recommendation 43 of the JSCEM’s
report on the 1996 federal election.
Schedule 1 - Items 72 to 74, 76
to 77, 110 to 112, and 114 to 115 – Sex and date of birth on the certified
list
94. Item 72 amends section 208 of the Electoral Act and item 110
amends section 22 of the Referendum Act, respectively, to include the sex
and date of birth of each elector on the certified list for elections and
referendums. These details will allow a check on the identity of electors at
the time of voting.
95. When a presiding officer at a polling booth is
not satisfied that the elector is who he or she claims to be, these amendments
will allow the presiding officer to ask the elector questions about this
additional information on the certified list. Items 73 and 111 give effect to
these amendments of the Electoral Act and the Referendum Act.
96. Items
76, 77, 114, and 115 amend section 235 of the Electoral Act and section 37
of the Referendum Act to create a new form of provisional vote for circumstances
in which the presiding officer still has some doubt about the elector’s
identity following his or her answers to the presiding officer’s questions
or when the elector chooses not to answer the questions. The legislation
specifies the circumstances under which a provisional vote may be
cast.
97. Consequential amendments to section 230 of the Electoral Act
and section 32 of the Referendum Act, respectively, at items 74 and 112, will
ensure that errors or omissions on the roll relating to the sex and date of
birth of the elector do not cause the elector to forfeit his or her
vote.
98. These amendments give effect to the Government response to
recommendation 5 of the JSCEM’s report on the integrity of the
electoral roll (User Friendly, Not Abuser Friendly).
Schedule 1 - Items 75 and 113 – Scrutineers not to actively assist
electors who have requested an assisted vote
99. It is currently the
case that, under section 234 of the Electoral Act and section 36 of the
Referendum Act, where an elector satisfies the presiding officer of a polling
place that they suffer a disability which precludes them from personally casting
a vote (for example, people who are physically impaired, visually impaired or
illiterate), the elector may be assisted in the casting of their vote by a
person of their choice.
100. These amendments to section 234 of the
Electoral Act and section 36 of the Referendum Act propose to explicitly prevent
scrutineers from providing assistance to voters. Apart from scrutineers, this
amendment will not limit in any other way those who can assist the elector in
the casting of their vote. Scrutineers are unable to relinquish their
appointment as a scrutineer in order to assist in the casting of a vote.
101. These amendments give effect to the Government response to
recommendation 36 of the JSCEM’s report on the 1998 federal
election.
Schedule 1 - Items 78 and 116 – Proof of identity and
address for provisional voting
102. Paragraph 235(1)(a) of the
Electoral Act and paragraph 37(1)(a) of the Referendum Act provide for an
elector whose name cannot be found on the certified list to cast a provisional
vote.
103. These items amend section 235 of the Electoral Act and section
37 of the Referendum Act to provide for proof of identity and address, as
prescribed by regulations, to be provided by electors casting a provisional vote
when their name cannot be found on the certified
list.
104. Recommendation 2 of the JSCEM's inquiry into the 2001 federal
election recommended that electors who cast this form of provisional vote be
required to provide proof of identity and address before being issued with a
vote. The Government supported the recommendation and indicated that the proof
of identity and address required should be similar to that proposed for
enrolment. As the scheme for proof of identity and address for enrolment is
subject to consultation with the States and Territories (see items 9, 12, 16, 19
and 42), a similar requirement cannot be prescribed for provisional voting until
this process has been completed. Regulations for proof of identity and address
for provisional voting will be made following consultation with the States and
Territories.
105. As the provisions are subject to regulations being
developed in consultation with the States and Territories and possible
complementary State and Territory legislation, all items in this Bill relating
to proof of identity and address are to commence on
proclamation.
Schedule 1 - Items 79 to 84 and 86 to 87 – Minimum
disclosure provisions
106. In relation to these items, the minimum
amount donated by a donor, to a political party, candidate, member of a group,
or organisation before a return is required to be lodged with the AEC is
referred to as the ‘disclosure threshold’.
107. Item 79 amends subsection 305B(1) to lift the disclosure threshold from $1,500 to $3,000 so that where a person makes donations totalling $3,000 or more in a financial year to the same political party, or to the same State branch of a political party, he or she must provide a return to the AEC. Donations totalling less than $3,000 in a financial year to the same political party, or to the same State branch of a political party, will not have to be disclosed.
108. Items 80 and 81 amend subsection 305B(3A) to bring it into line with
the proposed amendments to 305B(1). That is, where the donor receives a gift
valued at $3,000 which is then used to make up gifts donated to a political
party totalling $3,000 or more in a financial year, this must be included in the
return to the AEC.
109. The amendment to subsection 306(1), at item 82,
would increase the disclosure threshold for a political party or a person acting
on behalf of a political party for a gift received from $1,000 to $3,000.
110. The proposed amendments to subsections 306A(1) and 306A(2), at
items 83 and 84, increase the disclosure threshold for a party, candidate,
member of a group or a person acting on behalf of a political party, candidate
or group for a loan that may be received from a person or organisation from
$1,500 to $3,000.
111. Item 86 amends subsection 314AC(1) to increase the
disclosure threshold for donations received by a party from a person or
organisation from $1,500 to $3,000.
112. The amendment to subsection
314AE(1), at item 87, increases the disclosable sum of all outstanding debts
incurred by, or on behalf of, a party to a person or organisation from $1,500 to
$3,000.
113. These amendments give effect to the Government response to
recommendation 45 of the JSCEM’s report on the 1998 federal
election.
Schedule 1 - Items 85 and 118 – Publishers’ and
Broadcasters’ returns on electoral expenditure
114. Sections
310 and 311 of the Electoral Act require publishers and broadcasters to provide
returns to the AEC with details about electoral advertisements broadcast or
published during an election period. Returns are to include information on who
requested the advertisements, who authorised the advertisements, how often and
when they were broadcast or printed and the cost of the advertisements. Item 85
repeals section 310 and 311 to remove this requirement for broadcasters and
publishers.
115. These provisions place an administrative burden on publishing and broadcasting businesses that is not required because expenditure on electoral advertising is already disclosed by individuals and organisations that authorise the advertisements as required under other sections of the Electoral Act.
116. Part IX of the Referendum Act has similar provisions in relation to
referendums. For consistency, item 118 repeals Part IX of the Referendum
Act.
117. This is a Government-initiated amendment.
Schedule 1
- Items 88 to 91 and 119 to 123 – Heading to electoral advertising in
journals
118. Under the Electoral Act and the Referendum Act, any
article or paragraph in a journal containing electoral matter must be labelled
as an ‘advertisement’.
119. This is due to inaccurate
amendments in the Electoral and Referendum Amendment Act 1998. The
intent of the amendments was to broaden the requirement to label advertisements
so that it included printed matter other than newspapers. However, as the
legislation currently stands, any political commentary in any journal must be
labelled as an advertisement.
120. The items will amend section 331 of
the Electoral Act and section 124 of the Referendum Act so that advertisements
containing electoral matter must be labelled as an ‘advertisement’,
whether inserted for consideration (meaning monetary or non-monetary payment) or
not.
121. These amendments give effect to the Government response to
recommendation 17 of the JSCEM’s report on the 1998 federal
election.
Schedule 1 - Item 92 – Increased penalty for false
witnessing an enrolment paper
122. As part of recommendation 1 of the
inquiry into the 2001 federal election, the JSCEM recommended that penalty
levels be increased for false enrolments and false claims by witnesses, and that
a new penalty should be introduced for false claims by applicants for enrolment,
including that they are unable to produce primary forms of
identification.
123. False enrolment and false claims by applicants for
enrolment are currently covered by the provisions of the Criminal Code, and
attract sentences of 12 months imprisonment. However, false claims by witnesses
are covered by section 337 of the Electoral Act, and attract a penalty of
$1,000.
124. This item increases the penalty for false claims by
witnesses in section 337 to 12 months imprisonment.
125. This
amendment gives effect to the Government response to part of
recommendation 1 of the JSCEM’s report on the 2001 federal
election.
126. Items 93 and 125 will insert new subsections to section 339 of the
Electoral Act and section 130 of the Referendum Act respectively, to add a new
offence of ‘intentional’ multiple voting. Where a person is found
guilty of intentionally voting more than once at the same election (or
referendum), the penalty will be 60 penalty units, imprisonment for 12 months,
or both. This will have the effect of disqualifying anybody convicted and under
sentence (or subject to be sentenced) under either of these sections from being
capable of sitting as a Senator or Member of the House of Representatives by
virtue of section 44 of the Constitution.
127. These offences are in
addition to, and do not replace, the current offences of voting more than once
at the same election or referendum, which are offences of strict liability, and
which will retain a penalty of 10 penalty units. The purpose of this is to
maintain a relatively low penalty for those convicted of perhaps unintentional
or accidental multiple voting, whereas those convicted of intentional multiple
voting may receive the penalty of 60 penalty units, 12 months imprisonment, or
both.
128. To reinforce the severity of multiple voting, each additional
vote, apart from the one legitimate vote, will be treated as a separate
offence.
129. Item 124 corrects an existing technical error in the
Referendum Act by substituting the word ‘election’ with
‘referendum’.
130. These amendments give effect to the
Government response to recommendation 26 of the JSCEM’s report on the
2001 federal election.
131. This item amends subsection 355(e) of the Electoral Act to require
that the 40 day period for filing a petition to the Court of Disputed
Returns be counted from the date of return of the last writ.
132. There
can be up to 16 writs for Senate and House of Representatives elections held on
the same day, and the date of return of these writs is dependent on the date of
the declaration of the poll for the various elections. Writs are regularly
returned on different dates, resulting in different closing dates for petitions
to the Court of Disputed Returns.
133. This amendment will ensure a
standard closing date for petitions to the Court of Disputed
Returns.
134. This is a Government-initiated amendment in response to the
JSCEM’s report on the 2001 federal election.
Schedule 1 - Item
103 – Repealing provisions of the Electoral and Referendum Amendment
Act (No. 1) 1999
135. Items 10, 11 and 12 of Schedule 1 to the
Electoral and Referendum Amendment Act (No. 1) 1999 amended the Electoral
Act to introduce a new scheme for witnessing enrolments and verifying proof of
identity for new enrolments, as set out in regulations.
136. These
items were never proclaimed as regulations to give effect to the scheme were
disallowed by the Senate in 2002. The items have now been superseded by the
proof of identity and address at enrolment proposal contained in this Bill.
Item 103 repeals items 10, 11 and 12 of Schedule 1 to the Electoral and
Referendum Amendment Act (No. 1) 1999.
137. This is a
Government-initiated amendment.
138. Items 104 and 105 make technical amendments to items 764 and 765 of
Schedule 1 to the Public Employment (Consequential and Transitional)
Amendment Act 1999 which came into effect on 5 December 1999. Items
764 and 765 amended the definition of “authorized witness” in
section 3 of the Referendum Act. However, the amendments contained in the
Public Employment (Consequential and Transitional) Act 1999 incorrectly
spelt “authorised” with an “s” rather than as
“authorized” with a “z” as it is spelt in the
Referendum Act. Therefore, the amendments were not technically correct.
139. The amendments do not amend either the Electoral Act or the Referendum
Act. They amend the Public Employment (Consequential and Transitional)
Amendment Act 1999.
140. This is a Government-initiated
amendment.
141. Item 117 amends section 62 of the Referendum Act to require
Divisional Returning Officers to delete all details from a ‘silent’
elector’s postal vote application, except the person’s name, before
making them available for public inspection. This will ensure consistency
between the Electoral Act and the Referendum Act in relation to the information
that is to be deleted from the postal vote applications of ‘silent’
electors prior to public inspection.
142. This is a Government-initiated
amendment.
Schedule 1 - Items 136 to 138 – Transitional
provisions relating to minimum disclosure provisions
143. These items
deal with the application of the proposed amendments to subsections 305B(1),
305B(3A), 314AC(1) and 314AE(1) of the Electoral Act, so that the amendments
apply to the financial year in which the items commence, as well as to all
subsequent financial years. Although this application may be retrospective in
some circumstances, no detrimental effect is anticipated as the amendments will
simplify disclosure requirements. If individuals and parties have been
maintaining appropriate records in line with current requirements, no additional
information will need to be gathered.
144. These amendments give effect to the Government response to recommendation 45 of the JSCEM’s report on the 1998 federal election.