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2002-2003-2004
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
ELECTORAL AND
REFERENDUM AMENDMENT (ACCESS TO ELECTORAL ROLL AND OTHER MEASURES) BILL
2004
EXPLANATORY
MEMORANDUM
(Circulated
with the authority of the Special Minister of State,
Senator the Hon Eric
Abetz)
ELECTORAL AND REFERENDUM AMENDMENT (ACCESS TO ELECTORAL ROLL AND OTHER
MEASURES) BILL 2004
OUTLINE
The Bill contains measures
amending both 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 main amendments will:
• restructure sections 90 to 91E of the Electoral Act to make roll access provisions more understandable;
• extend the end-use restrictions for roll information to all forms of the roll;
• remove references to the form in which rolls are produced from the Electoral Act;
• remove the roll from sale in any format;
• require the Australian Electoral Commission (AEC) to publish a statement of reasons about party names where the AEC has decided that the party name cannot be registered;
• allow scrutineers to be present at pre-poll voting centres;
• clarify procedures for nomination of candidates for election to both Houses of Parliament;
• prohibit broadcasting of political material that is audible within close proximity of polling places;
• allow for the temporary suspension or adjournment of polling for
physical and safety reasons; and
• make a series of technical
amendments to the Electoral Act and the Referendum Act.
The estimated cost of implementing the roll access provisions, including
providing the roll in electronic format in each divisional office, Head Office
and Central Office of the AEC and providing an inquiry facility on the internet
is $1.8 million in 2004-05; $0.6 million in 2005-06; $0.6 million in 2006-07 and
$0.6 million in 2007-08.
The estimated cost of provisions permitting a
sitting independent candidate to renominate with one signature is $15,000 in
2004-05, primarily in system redesign and staff training.
The estimated
cost of publishing statements of reasons for decisions not to agree to
applications to register party names is $7,000 over four years from
2004-05.
ELECTORAL AND REFERENDUM AMENDMENT (ACCESS TO ELECTORAL ROLL AND
OTHER MEASURES) BILL 2004
Clause 1 – Short title
1. This clause provides for
the short title of the Act.
Clause 2 – Commencement
2. This clause provides that sections 1 to 3 commence on Royal
Assent. All items in Schedule 1 commence on the 28th day after Royal
Assent.
Clause 3 – Schedule(s)
3. This clause
provides that each Act specified in a Schedule is amended or repealed as set out
in the Schedule, and any other item in a Schedule has effect according to its
terms.
Schedule 1 – Amendments
Schedule 1 -
Items 1, 20, 33, and 37 – Scrutineers at pre-poll voting
offices
4. These items amend the Electoral Act and Referendum Act to
allow scrutineers to attend pre-polling at pre-poll voting offices. Currently,
scrutineers are not entitled to attend polling at pre-poll voting offices. The
new provisions are similar to the provisions for scrutineers at ordinary polling
places contained at sections 217 and 218 of the Electoral Act and sections 27
and 28 of the Referendum Act.
5. Items 20 and 37 add new sections 200DA
and 200DB to the Electoral Act and new sections 73CA and 73CB to the Referendum
Act, respectively. These new sections allow for the appointment of scrutineers
for pre-polling and govern the behaviour of scrutineers at pre-poll voting
offices. The items include new offence provisions in relation to scrutineers
who attempt to influence an elector at pre-poll voting offices.
6. Items
1 and 33 are consequential amendments that add the definition of a
‘pre-poll voting office’ to section 4 of the Electoral Act and
section 3 of the Referendum Act.
7. These amendments give effect to the
Government response to recommendation 16 of the JSCEM's inquiry into the
2001 federal election.
Schedule 1 - Items 2, 5, 6, 110 and 111
– Permitting the use of roll information by prescribed authorities for
prescribed purposes
8. These amendments allow prescribed authorities
to use roll information for permitted purposes. Prescribed authorities are
defined as either the head of an agency within the meaning of the Public
Service Act 1999 or a Chief Executive Officer of an authority of the
Commonwealth. Item 2 adds this definition to section 4 of the Electoral Act.
9. The Electoral Act contained no specific power to provide confidential
elector information to prescribed authorities in electronic format and no
specific power for prescribed authorities to use the information.
Subregulations 10(2) and 10(3), and Schedule 3 were added to the Electoral and
Referendum Regulations 1940 to allow for the provision and use of confidential
elector information by prescribed authorities.
10. A sunset clause was
inserted in the regulations at the time the subregulations and the Schedule were
made on the basis that a legislative solution to the problem would be sought and
the regulations would no longer be required.
11. Item 5 amends the
Electoral Act to specify the permitted purposes for which prescribed authorities
can use roll information. These include monitoring the accuracy of information
on the roll and for purposes that are prescribed by regulations.
12. Item
6 is a consequential amendment of subsection 91A(2A) of the Electoral Act.
This subsection specifies the permitted purposes for use of roll information by
people other than senators, members of the House of Representatives and
political parties. Prescribed authorities are included in this
list.
13. Items 110 and 111 save the prescribed authorities listed in
Schedule 2 of the Electoral and Referendum Regulations 1940 and the prescribed
authorities and the purposes for which they may use the roll listed in Schedule
3 of the Electoral and Referendum Regulations 1940.
Schedule 1 - Items
3, 7, 9, 13, 112 and 114 – Roll access
14. These items amend
sections 90 to 91 and 111 of the Electoral Act, and repeal sections 91AA to 91AB
and 91C to 91E of the Electoral Act. The items: restructure the roll access
provisions in the Electoral Act to make them more understandable; remove, apart
from printed versions of the roll, any reference to the form in which the rolls
are produced; and provide that the roll will not be available for sale in any
format.
15. All current entitlements to roll information have been
retained apart from the number of copies of the printed roll which Members of
the House of Representatives and Senators will receive. Members of the House of
Representatives and Senators will be entitled to three copies of the printed
roll instead of the current five copies. They will also receive an electronic
copy of the roll. Registered political parties will receive one copy of the
printed roll.
16. Sections 90 to 91E of the Electoral Act have developed
over time into a complex and difficult regime to ascertain access to roll
information. These amendments will restructure the entitlements to roll
information into a tabular form that is more easily understood.
17. In
addition to being complex, sections 90 to 91E of the Electoral Act restrict the
AEC in the forms in which it can produce the roll. Rolls can be produced in
print form, on tape or disk, or in microfiche form. The amendments will remove
all reference to the forms in which the roll can be produced from the Electoral
Act apart from print form, enabling the AEC to produce the roll in the form most
useful to those with an entitlement to roll information. Removing the form of
the roll also means that the AEC can produce electronic versions of the roll for
public inspection in AEC offices and introduce an internet facility that will
allow electors to verify their enrolment details. The AEC will continue to have
a printed roll available for inspection at each of its
offices.
18. Finally, the amendments remove the roll from sale in any
format, closing a loophole that has allowed the roll to be used for unauthorised
and commercial uses.
19. The items will have the following
effect:
• item 3 repeals sections 90 to 91AB and creates new sections
90, 90A, and 90B that specify who has access to roll information, what
information they are entitled to, and the circumstances in which the information
may be given;
• item 7 amends subsection 91A(2B) of the Electoral Act,
which relates to the permitted purposes for which roll information can be used
by State or Territory electoral authorities, to ensure this subsection applies
to the new subsection 90B(1), which will replace the current subsection
91(9B);
• item 9 repeals section 91C to 91E of the Electoral Act, the
details of which will be contained in new sections 90, 90A and 90B;
and
• item 13 repeals subsection 111(3), which allows Divisional
Returning Officers to print amendments they have made to the roll using the
computerised roll management system so the amendments can be publicly inspected.
This subsection is no longer required because new section 90 will allow the AEC
to provide the roll in electronic as well as printed format.
20. Item 112
is a transitional provision that protects requests for roll information made
under section 91 of the Electoral Act before the commencement of these items by
ensuring the request is dealt with as if it had been made under new section
90B.
21. Item 114 is an application provision that ensures that, for
information provided under subsection 91(9B) before the commencement of these
items, subsection 91A(2B) applies as if it were a reference to item 16 of the
table in subsection 90B(1).
22. These amendments give effect to the
Government response to recommendations 27, 28 and 29 of the JSCEM's inquiry into
the 2001 federal election.
Schedule 1 - Items 4, 8, 113 and 115
– Extending the prohibition on the inappropriate use of roll
information
23. At present, prohibitions on the inappropriate use of
roll information under sections 91A and 91B of the Electoral Act apply only to
roll information provided on tape or disk unless the information is provided by
some other means to a State or Territory electoral authority.
24. Items 4
and 8 amend sections 91A and 91B of the Electoral Act to extend the prohibitions
on inappropriate use of roll information to all versions of the roll,
irrespective of format. The prohibitions will apply to roll information,
additional information and certified lists.
25. This amendment will
ensure that it is an offence to use roll information for any purpose other than
those listed in the Electoral Act.
26. Items 113 and 115 ensure that the
new prohibitions apply to all roll information, regardless of when
obtained.
27. These amendments give effect to the Government response to
recommendation 31 of the JSCEM’s inquiry into the 2001 federal
election.
Schedule 1 - Items 10, 12 and 116 – Extending
the time during which electors overseas can enrol from two to three years
28. Subsection 94(1B) of the Electoral Act allows an enrolled
elector who has left Australia to apply for eligible overseas elector status at
any time up to two years after they have left Australia. Paragraph 94A(2)(d) of
the Electoral Act allows an eligible Australian living overseas to enrol up to
two years after the time they left Australia.
29. The main catalyst for
applications to become an eligible overseas elector or to enrol from overseas is
a federal election. It is therefore possible for Australians who are overseas
to lose their eligibility to be enrolled before enrolment action is triggered by
an electoral event.
30. Items 10 and 12 will amend sections 94 and 94A of
the Electoral Act to extend the time in which Australians overseas can either
apply for eligible overseas elector status or enrol from outside Australia and
seek eligible overseas elector status from two to three years. This will ensure
that an electoral event occurs during the time they are eligible to apply for
overseas elector status.
31. Item 116 will allow electors who have been
overseas for more than two years but less than three years when the item
commences to be eligible for overseas elector status.
32. These
amendments give effect to the Government response to recommendation 5 of
the JSCEM's inquiry into the 2001 federal election.
Schedule 1 - Item 11 and 117 – Removing the requirement for an
Australian enrolling from overseas to state the reason for leaving
Australia
33. Paragraph 94A(1)(a) governs who may apply for enrolment
from overseas. Currently, the applicants must have left Australia for a purpose
related to their career or employment, or their spouse's employment to be
eligible to apply for enrolment from overseas. Item 11 removes that
requirement.
34. Item 117 will ensure that applications made before item
11 comes into effect, but which are processed after item 11 comes into effect,
will be considered valid.
35. These amendments give effect to the
Government response to recommendation 4 of the JSCEM's inquiry into the
2001 federal election.
Schedule 1 - Items 14, 15 and 16 –
Publishing reasons for decisions in relation to party names
36. These
items will require the AEC to provide to the parties to an application for, or
objection to, the registration of a party name, a written notice of reasons for
its decision not to register a party name. The AEC will also be required to
publish those reasons. It will have the discretion on the form in which those
decisions are published. Initially, decisions will be published on the
AEC’s internet site.
37. Item 14 will add a new section 132A to the
Electoral Act that will require the AEC to provide a written notice of reasons
in relation to decisions made while processing an application for registration
by a political party where the AEC has made a decision that the name cannot be
registered.
38. Item 15 will add a new subsection to section 134 of the
Electoral Act that will require the AEC to provide a written notice of reasons
in relation to decisions on party names made as part of an application to change
the registration of a political party where the AEC has made a decision that the
name cannot be registered.
39. Item 16 will add a new subsection to
section 134A of the Electoral Act that will require the AEC to provide a written
notice of reasons in relation to decisions made concerning the continued use of
a party name by a registered political party where the AEC has made a decision
that the name cannot be registered.
40. These amendments give effect to
the Government response to recommendation 12 of the JSCEM's inquiry into
the 2001 federal election.
Schedule 1 - Items 17 and 18 –
Nomination by sitting independents using a single signature
41. These
items amend section 166 of the Electoral Act to provide that independent members
of parliament should only be required to obtain one signature from an elector
within the Division for which they are currently a member, or the State or
Territory for which they are currently a Senator, in order to nominate.
42. For the purposes of this amendment, subsections 166(1C), 166(1D) and
166(1E) will be inserted in the Electoral Act by item 18. These will ensure
that independent members of parliament are taken to be members of parliament who
were not endorsed by a registered political party at the previous
election.
43. The entitlement to nominate using a single signature
applies only to members of parliament who were elected as independents at the
previous election and are standing in the same Division for which they were
elected if they are members of the House of Representatives or the same State or
Territory for which they were elected if they are a Senator.
44. In instances where a State or Territory has been redistributed since the last election, new subsection 166(1B) will enable independent members of the House of Representatives to nominate with a single signature for any Division that shares some geographical area with the Division for which the member was elected.
45. Item 17 makes a consequential amendment to subsection 166(1).
46. These amendments give effect to the Government response to
recommendation 10 of the JSCEM's inquiry into the 2001 federal
election.
Schedule 1 - Item 19 – Withdrawal from bulk
nominations
47. Subsection 167(3) of the Electoral Act permits the
nomination of all candidates for a registered political party to be made by the
registered officer of the political party to the relevant Australian Electoral
Officer for the State or Territory. This process is colloquially known as 'bulk
nomination'. Section 177 permits a candidate to withdraw their nomination
before the hour of nomination.
48. Item 19 repeals section 177 of the
Electoral Act and replaces it with a new section 177 that will allow the
withdrawal of a candidate's nomination from a bulk nomination without affecting
the other nominations, provided the withdrawal is made with the consent of the
registered officer of the political party that made the bulk
nomination.
49. The new section will maintain the entitlement of
candidates who nominate individually to withdraw their
nominations.
50. In the case of a House of Representatives election, the
withdrawal of a nomination must be provided to the relevant Divisional Returning
Officer. This item will also ensure that withdrawals from bulk nominations
should be made to the Australian Electoral Officer to whom the original bulk
nomination was made.
51. New section 177 also compels the Australian
Electoral Officer to whom the withdrawal has been sent to inform the Divisional
Returning Officer for the Division in which the candidate was
nominating.
52. These amendments give effect to the Government response
to suggested technical amendments arising from recommendation 24 of the JSCEM's
inquiry into the 2001 federal election.
Schedule 1 - Items 21 and 36
– Return of postal votes
53. To be included in the scrutiny,
postal votes must be cast on, or before, polling day and must be returned to the
Division for which the elector is enrolled within 13 days after the close
of the poll. Occasionally, postal votes are returned to AEC offices other than
the divisional office in the Division in which the elector is enrolled.
54. When this happens, the postal votes are forwarded to the correct
divisional office according to subsections 228(5A) of the Electoral Act and
46A(5A) of the Referendum Act. However, under subparagraphs 228(5A)(b)(ii) of
the Electoral Act and 46A(5A)(b)(ii) of the Referendum Act, forwarded postal
votes can only be included in the scrutiny if they are received by the
forwarding AEC office 'prior to the close of the poll' and are received by the
correct divisional office within 13 days after the close of the poll.
55. In other words, if a postal vote is returned to the AEC at an office
other than the correct divisional office, the postal voter is not afforded the
13 day period after the close of polls to return the postal
vote.
56. These items amend the Electoral Act and Referendum Act to
remove the requirement that, if an AEC office other than the correct divisional
office receives postal votes, the postal vote is to be received before the close
of polling.
57. The amendments will require that the correct divisional
office must receive all postal votes within 13 days after the close of the poll,
regardless of where the postal vote is to be received by the
AEC.
58. These amendments give effect to the Government response to
recommendation 15 of the JSCEM's inquiry into the 2001 federal
election.
Schedule 1 - Items 22, 23, 34 and 35 – Temporary
suspension of polling
59. Sections 241 of the Electoral Act and 42 of
the Referendum Act allow for the adjournment of polling to another day in the
event of riot, violence, storm, tempest, flood or similar disruptions.
60. Items 22 and 34 insert new sections 240A in the Electoral Act and
41A in the Referendum Act to allow for a shorter, temporary suspension of
polling in circumstances where polling should be able to continue later in the
day.
61. As is currently the case in sections 241 of the Electoral Act
and 42 of the Referendum Act, the presiding officer would make the initial
decision to suspend polling. During the period of suspension, electors at the
polling place would be advised either to attend their nearest alternative
polling place or to return later in the day.
62. As the proposed
circumstances in which polling can be temporarily suspended are more
comprehensive than the current circumstances in which polling can be adjourned,
the amendments at items 23 and 35 align the circumstances in which polling can
be adjourned to those in which polling can be temporarily
suspended.
63. These amendments give effect to the Government response to
recommendation 21 of the JSCEM's inquiry into the 2001 federal
election.
Schedule 1 - Items 24, 25, 26, 31, 32, 38 and 39 –
Election results attached to the writs
64. Writs for Senate elections
are returned by the Australian Electoral Officer for each State and Territory
under section 283 of the Electoral Act. The Electoral Commissioner under
section 284 of the Electoral Act returns writs for House of Representatives
elections. The Electoral Commissioner under section 98 of the Referendum Act
returns writs for referendums.
65. In each case, the results of the
election or referendum must be certified in writing on the writ. The results
are either photocopied or printed using a laser printer on the back of the
original writs, risking damage to these legal documents. Attaching the results
of the election or referendum to the writ would remove the risk of damage to the
writ.
66. Item 24 amends paragraph 283(1)(b) of the Electoral Act so that
the Australian Electoral Officer for each State or Territory endorses an
attachment to the writ with the names of the candidates elected in a Senate
election, and the writ and its attachment are forwarded to the Governor or
Governor-General.
67. Item 25 repeals subsections 284(3) and 284(4) of
the Electoral Act and replaces them with new subsections that require the
Electoral Commissioner to certify in writing on an attachment to the writ the
name of the candidate(s) elected in a House of Representatives election and
return the writ and the attachment to the
Governor-General or the Speaker as
required.
68. Item 38 repeals section 98 of the Referendum Act and
replaces it with a new section 98 so that the Electoral Commissioner endorses an
attachment to the writ containing the number of votes in favour of the proposed
law, the number of votes against the proposed law and the number of informal
ballot papers, and sends the writ and its attachment to the Governor-General.
The Electoral Commissioner will also be required to publish a copy of the
attachment to the writ in the Gazette.
69. Item 39 amends section
99 of the Referendum Act to indicate that the Electoral Commissioner shall send
a copy of the writ and its attachment to each Governor and the Administrator of
the Northern Territory.
70. There are a number of consequential
amendments to these items. Item 26 amends section 285 of the Electoral Act to
add the attachment to the writ to the list of items for which this section
applies. Items 31 and 32 amend Forms A and AA in Schedule 1 of the Electoral
Act respectively to reflect the fact that the results are contained in an
attachment.
Schedule 1 - Items 27, 28, 29, 40 and 41 –
Broadcasting of political material at polling booths
71. Sections
340 of the Electoral Act and 131 of the Referendum Act prohibit canvassing
within six metres of the entrance to a polling booth, at the entrance of a
polling booth, and within a polling booth. During the JSCEM's inquiry into the
2001 federal election, the JSCEM examined a number of claims that canvassing was
occurring by being broadcast using loudspeakers situated outside the six metre
limit that were clearly audible within the six metre limit.
72. On that
basis the JSCEM recommended that canvassing by broadcasting political material
that is clearly audible within the six metre limit be prohibited.
73. These items amend section 340 of the Electoral Act and section 131
of the Referendum Act to prohibit canvassing for votes using equipment for
broadcasting outside the six metre limit but which is audible within six metres
of the entrance to a polling booth, at the entrance to a polling booth or within
the polling booth.
74. The prohibition also applies to the same canvassing activities prohibited
under subsection 340(1).
75. The same penalty that applies to canvassing
within the six metre limit, at the entrance to a polling booth, or within a
polling booth will apply where the broadcasting is audible within six metres of
a polling booth, at the entrance to a polling booth and within a polling booth.
The penalty is five penalty units.
76. These amendments give effect to
the Government response to recommendation 22 of the JSCEM’s inquiry
into the 2001 federal election.
Schedule 1 - Items 30 and 42 –
Removal of appeal to the High Court by way of right
77. The
Electoral and Referendum Amendment Act (No. 1) 2001 amended the Electoral
Act and the Referendum Act to include an appeal to the High Court by way of
right. These amendments conflict with section 33 of the Federal Court Act
1976 which states that appeal should be by way of special leave. The
creation of this right of appeal was unintentional.
78. These items
remove this right of appeal by repealing subsections 383(9) of the Electoral Act
and 139(9) of the Referendum Act.
Schedule 1 - Items 43, 44, 47, 48
and 49 – Definition of 'spouse' and 'child'
79. There are two
sections of the Electoral Act that refer to, or include, 'spouse' (sections 94A
and 95) and two that refer to 'child' (subsection 95(16) and 95(17)). It
would be more appropriate if 'spouse' and 'child' were defined in section 4 of
the Electoral Act.
80. Items 43 and 44 insert a definition of 'child' and
'spouse' in the definitions at section 4 of the Electoral Act. Item 47 repeals
subsection 95(16).
81. Items 48 and 49 remove the definitions of 'child'
and 'spouse' from subsection 95(17) of the Electoral
Act.
Schedule 1 - Item 45 – Publication of notice about
abolished polling places
82. Paragraph 80(3)(b) of the Electoral Act
provides that after the issue of the writ for an election, the AEC must publish
details of all the polling places for a Division and details of those polling
places which have been abolished since the last election. The intent of the
section is to ensure electors know where polling places will be for the
forthcoming election.
83. If a referendum takes place between
elections, the details of polling places that have been abolished is misleading
because it will contain a list of polling places abolished at the last election,
rather than at the referendum.
84. Item 45 will correct this problem to
ensure that the AEC publishes a list of polling places abolished at the last
electoral event whether it is an election or a referendum.
Schedule 1
- Item 46 – Obtaining information from certain Territory government
officers
85. Section 92 of the Electoral Act enables the AEC to conduct roll reviews to maintain the accuracy of the electoral roll. Subsection 92(1) gives the AEC the power to obtain information for roll maintenance from particular bodies, including State police, statistical and electoral officers. This item inserts ‘Territory’ into the provisions and will ensure that the AEC can obtain information from Territory police, statistical and electoral officers.
Schedule 1 - Items 50, 51, 52, 53 and 118 – Appeals to enrolment
amendments
86. Section 105 of the Electoral Act allows Divisional
Returning Officers to make amendments to the enrolment of an elector. In a
number of instances, the elector will be informed in writing of the decision.
Currently, an elector has no mechanism to appeal an alteration made by a
Divisional Returning Officer under this section if the elector believes the
alteration was wrong.
87. Items 50 to 53 will provide electors with an
avenue of appeal over these amendments. Electors will be able to appeal to the
relevant Australian Electoral Officer under section 120 of the Electoral Act,
and then to the Administrative Appeals Tribunal (AAT) under section 121 of the
Electoral Act.
88. Item 118 ensures that these amendments apply to all
enrolment amendments under section 105 that are notified to the elector
regardless of when those amendments were made.
Schedule 1 - Items 54,
55, 57, 58, 83, 90, 91 and 92 – Clarification of postal vote procedures
89. Section 188 of the Electoral Act and section 61 of the
Referendum Act require the Divisional Returning Officer or Assistant Returning
Officer to issue a postal vote declaration certificate envelope, ballot paper,
or papers, and an envelope (the outer envelope) addressed to the Divisional
Returning Officer or Assistant Returning Officer. At recent electoral events
the outer envelope with a window face has been used. In effect, the envelope
has not been 'addressed' as such. It merely serves as a carrier for the postal
vote declaration certificate envelope on which the address of the Divisional
Returning Officer or Assistant Returning Officer is printed.
90. Section 186 of the Electoral Act and section 58 of the Referendum
Act detail the postal voting materials to be dispatched to registered general
postal voters. The materials listed are the same as those listed in section 188
of the Electoral Act and section 61 of the Referendum Act.
91. Items 54,
55, 90 and 91 amend sections 186 and 188 of the Electoral Act and sections 58
and 61 of the Referendum Act to allow greater flexibility in the way the postal
vote package is designed by allowing the return address of the Divisional
Returning Officer or Assistant Returning Officer to be printed either on the
postal vote declaration certificate envelope or on an outer
envelope.
92. Section 194 of the Electoral Act and section 65 of the
Referendum Act provide directions for the completion of a postal vote by an
elector. However, these sections are inaccurate because they require the
elector to place the marked ballot papers in the 'envelope addressed to the
appropriate Divisional Returning Officer'. Taken literally, this paragraph
could be read to mean the outer envelope, rather than the declaration
certificate envelope, which should contain the ballot papers. If an elector
followed this instruction literally, their vote would be
invalid.
93. Items 57 and 92 amend section 194 of the Electoral Act and
section 65 of the Referendum Act, respectively, to clarify the instructions
provided to electors for the completion of postal ballots so that the
instructions align with the amendments to section 188 of the Electoral Act and
section 65 of the Referendum Act above.
94. Items 58 and 83 are
consequential amendments to section 209 of the Electoral Act and section 25 of
the Referendum Act, respectively, which will amend the instructions printed on
the postal ballot paper to reflect the new procedures for returning postal vote
ballot papers.
Schedule 1 - Items 56, 73 and 74 – Clarification
of an authorised witness for postal voting outside
Australia
95. These items amend the Electoral Act and Referendum Act
to ensure that provisions relating to witnessing of overseas postal voting are
consistent between the two Acts.
96. Paragraph 193(2)(c) currently allows
a public servant of a Territory to be a witness for the purposes of postal
voting outside Australia. Item 56 will extend the permitted witnesses to
include public servants of a State as well as a Territory.
97. Items 73
and 74 insert definitions of ‘authorized witness’ into the
Referendum Act.
Schedule 1 - Items 59, 60, 65, 66, 67 and 68
– Removal of telegram as a method of delivery for various
forms
98. These items remove references to telegrams as a method of
delivery for various forms in the Electoral Act. In all cases, other more
appropriate means of delivery are specified in the Electoral
Act.
Schedule 1 - Items 61, 62, 63, 87 and 88 – Specifying who
may cast a vote at a prison mobile poll
99. Section 226A of the
Electoral Act and section 49A of the Referendum Act provide for mobile polling
to take place in prisons.
100. For mobile polling conducted in
hospitals and remote areas, there are provisions that define the classes of
electors entitled to vote at the mobile poll. In general, the classes of
electors are defined as being: in the case of an election – electors
entitled to vote in that election; or in any other case – electors for the
State or Territory in which the mobile poll is operating.
101. These
provisions are not contained in either section 226A of the Electoral Act or
section 49A of the Referendum Act. These items insert a provision that defines
the classes of electors entitled to vote at the mobile poll in prisons into
section 226A of the Electoral Act and section 49A of the Referendum
Act.
Schedule 1 – Items 64 and 119 – Method of delivery of
non-voter notices
102. Section 245 of the Electoral Act makes voting
compulsory and details procedures to be undertaken when an elector fails to
vote. Subsection 245(3) requires that the Divisional Returning Officer send a
penalty notice to alleged non-voters. This penalty notice is to be delivered by
post or other means.
103. Subsection 245(6) of the Electoral Act details
a similar process for sending a second penalty notice, except that the means of
delivery are different. In this case the Divisional Returning Officer must
either send the notice by post or deliver it to the elector.
104. Item 64
will make the delivery options for the second penalty notice the same as those
for this first penalty notice. Item 119 is an application that ensures this
item applies to a penalty notice delivered before the commencement of the
item.
Schedule 1 - Items 69 – Authorisation of political
material – drafting errors
105. Section 328 of the Electoral
Act relates to the authorisation of political material. Drafting errors have
been identified in subsection 328(4) of the Electoral Act. These arose because
consequential amendments were not made to subsection 328(4) following
amendments to subsection 328(3) which introduced a list of items to which the
authorisation provisions of the section do not apply. This list had previously
been contained as a prescribed list of articles in the Electoral and Referendum
Regulations 1940, which was referred to in former paragraph
328(3)(b).
106. Former paragraph 328(3)(b) of the Electoral Act was
repealed by the Electoral and Referendum Amendment Act 1998 and the list
that was prescribed by regulation was included in the Electoral Act as
paragraphs 328(3)(b) and 328(3)(c). A new paragraph 328(3)(d) was added in
relation to prescribing classes of articles. Paragraph 328(3)(d) is
identical to the former paragraph 328(3)(b).
107. This item amends
subsection 328(4) of the Electoral Act so that the reference to paragraph
328(3)(a) is corrected to refer to paragraphs 328(3)(a) to (c), and the
reference to paragraph 328(3)(b) is corrected to refer to paragraph
328(3)(d).
Schedule 1 - Items 70 and 120 – Mechanisms for
process serving for non-voters
108. Section 387A of the Electoral Act
states that process is taken to be served for an offence under section 245 if it
is delivered by mail to the address of the person recorded on the roll. This is
at variance with the requirement of section 245, which requires the delivery of
penalty notices to the latest known address of the elector. The latest known
address of the elector is used because the elector may have moved from their
enrolled address.
109. Item 70 amends section 387A of the Electoral Act
so that process is taken to be served for an offence under section 245 if it is
delivered by mail to the latest known address of the elector.
110. Item
120 is an application provision that ensures that the amendments made to section
387A apply only to offences committed after the commencement of the
item.
Schedule 1 - Items 71, 72 and 108 – Updating the dates on
electoral forms
111. There are a series of forms in Schedules 1 of
the Electoral Act and Referendum Act that require a date. Currently, these
forms contain dates for the 20th century. These forms will need to be amended
to reflect the new century.
112. These items amend Forms A, AA, B, C, CA,
CB, CC, D, and DA in Schedule 1 of the Electoral Act and Form A in Schedule 1 of
the Referendum Act to insert a date for the 21st
century.
Schedule 1 - Items 75, 76, 77 and 78 – Removing the
requirement to appoint an Australian Electoral Officer for the Northern
Territory for referendums
113. Section 20 of the Electoral Act
provides that there shall be an Australian Electoral Officer for each 'State'.
Section 5A of the Electoral Act provides that 'State' is read in section 20 as
including the Northern Territory.
114. However, subsection 5(1) of the
Referendum Act refers to the AEC appointing an Australian Electoral Officer for
each 'Territory' (defined in section 3 as the Australian Capital Territory and
the Northern Territory) for each referendum. This would appear to be
unnecessary in relation to the Northern Territory given the provisions of the
Electoral Act referred to above.
115. These items amend sections 3 and 5
of the Referendum Act to ensure that the Australian Electoral Officer for the
Northern Territory is recognised.
Schedule 1 - Item 79 – Setting
a final date for the return of the writ for a referendum
116. Section
159 of the Electoral Act provides that the date fixed for the return of the writ
in an election shall not be more than 100 days after the issue of the writ.
Currently, there is no similar provision in the Referendum Act.
117. In
the 1999 Referendum, the writs were returned within 100 days of their issue, and
in practice the AEC would return writs for a referendum within such a period.
However, there is merit in the period for the return of a writ for a referendum
being set in legislation. This item inserts in the Referendum Act an equivalent
provision to section 159 of the Electoral Act.
Schedule 1 - Items 80,
84, 93, 95, 96, 97, 98, 99, 100, 101, 102, 103 and 104 – Inserting
amendments made to the Referendum Act by the Australian Capital Territory
(Consequential Provisions) Regulations into the Referendum
Act
118. The Australian Capital Territory (Consequential Provisions)
Regulations 1997 contain modifications to the Referendum Act in a number of
respects concerning the Australian Capital Territory (ACT), so as to
appropriately recognise that the ACT is self-governing.
119. Modifying
the Referendum Act by the Australian Capital Territory (Consequential
Provisions) Regulations 1997 is potentially confusing to the readers of the
Referendum Act, and it is preferable that the provisions be included in that
Act.
120. These items transfer the relevant sections of the ACT
Self-Government (Consequential Provisions) Regulations 1997 into the Referendum
Act.
Schedule 1 - Item 81 – Notice of the writ in
newspapers
121. Subsection 14(1)(b) of the Referendum Act requires
that the particulars of the writ and a copy of the proposed law or statement
attached to the writ be published in at least two newspapers circulating in the
State or Territory. The comparable sections in the Electoral Act - sections
153(2)(b) and 154(4)(b) - were amended by the Electoral and Referendum
Amendment Act 1998 as a result of a JSCEM recommendation from the report on
the 1996 federal election to allow advertising in one newspaper where there is
only one newspaper in circulation. An amendment to the Referendum Act was also
recommended by the JSCEM, however the Referendum Act was never amended.
122. This item amends section 14 of the Referendum Act to provide
similar requirements for advertising of referendum writs.
Schedule 1 -
Item 82 – Staffing of polling booths at a
referendum
123. Subsection 17(6) of the Referendum Act requires that
the Electoral Commissioner will not appoint any deputy presiding officers for
polling places at which fewer than six persons will be engaged. This subsection
places constraints on the flexibility of staffing arrangements in polling booths
that mitigate against the AEC alleviating queuing problems in some polling
places.
124. An equivalent subsection of the Electoral Act –
subsection 203(6) – was repealed in 1992.
125. This item repeals
subsection 17(6) of the Referendum Act.
Schedule 1 - Item 85 –
Removal of the term 'candidate' from the Referendum
Act
126. Paragraph 36A(2)(b) of the Referendum Act provides for
certain voters to vote outside the polling place but refers to 'one scrutineer
per candidate' to be present when the elector votes. As there are no candidates
in a referendum, this item amends the subsection to remove any reference to
'candidate' while retaining the intention that only one scrutineer per interest
may be present.
127. Section 45 of the Referendum Act provides for compulsory voting at
referendums and contains a series of actions to be taken when an elector fails
to vote. This section is similar to section 245 of the Electoral Act.
128. Subsection 245(14) of the Electoral Act indicates that if an
elector believes it to be part of their religious duty to abstain from voting,
that will constitute a valid and sufficient reason for not voting. There is no
similar provision in the Referendum Act.
129. This item amends
section 45 of the Referendum Act to include a similar provision to subsection
245(14) of the Electoral Act.
Schedule 1 - Item 89 – Access by
patients to electoral material in hospital mobile
polls
130. Subsection 50(2A) of the Referendum Act provides that a
presiding officer or electoral visitor who visits a patient under sections 48 or
49 of the Referendum Act (which relate to mobile booths at hospitals that are
polling places, and at other hospitals) must advise the patient that literature
relating to the referendum supplied by political parties is available, and give
the patient any such literature that the patient requests.
131. The
wording of subsection 50(2A) of the Referendum Act does not accurately reflect
the issue that it addresses, namely that patients should have access to
literature relating to a referendum if they so desire.
132. Firstly, in
referendums (and the 1999 Referendums were examples of this) literature may not
be supplied by political parties, but by other persons. Secondly, the wording
of the section would appear to impose a duty on the presiding officer or
electoral visitor to give any literature that the patient requests, however it
may be impossible, despite the best efforts of the presiding officer or
electoral visitor, for this to be done.
133. Subsection 49A(8) of the
Referendum Act, which relates to mobile booths at prisons, avoids both these
problems. Section 49A(8) provides that: 'An electoral visitor who visits a
prison may, at the request of an elector confined in the prison, give the
elector literature relating to the referendum'.
134. Item 89 amends
subsection 50(2A) of the Referendum Act so that it is similar to subsection
49A(8) of the Referendum Act.
Schedule 1 - Item 91 – Return of
postal votes at a referendum
135. Section 188 of the Electoral Act
allows electors making a postal vote to return the postal vote to either the
Divisional Returning Officer or the Assistant Returning Officer. Assistant
Returning Officers are frequently used at overseas missions as an alternate
mailing point for postal votes in the event that an elector does not believe the
postal vote will be returned to the Divisional Returning Officer in Australia in
time to be counted. Postal votes returned to an Assistant Returning Officer can
usually be couriered to Australia more quickly than the standard postal
service.
136. There is currently no provision in the Referendum Act for
postal votes at referendums to be returned to an Assistant Returning Officer.
This item amends section 61 of the Referendum Act to rectify this omission. It
will result in more votes by overseas electors being admitted to the
count.
Schedule 1 - Item 94 – Fresh scrutiny of referendum
ballot papers
137. Subsection 274(7) of the Electoral Act provides
for the conduct of a fresh scrutiny of ballot papers for the House of
Representatives by the Divisional Returning Officer after receipt of ballot
papers from Assistant Returning Officers. Practice has shown that errors do
occur at counting centres and these errors are identified and corrected during
the fresh scrutiny process.
138. There is no provision in the Referendum
Act that allows for the conduct of a fresh scrutiny of votes in a referendum.
Therefore, there is no mechanism to allow for the rechecking of those ballot
papers that have been counted to ensure the accuracy of the count.
139. A fresh scrutiny of referendum votes is desirable to ensure the
accuracy of the referendum counts.
140. This item amends section 91(1)
of the Referendum Act to insert a section that allows for the conduct of a fresh
scrutiny of votes in a referendum similar to section 274(7) of the
Electoral Act.
Schedule 1 - Items 105 and 106 – Removing the
prohibition against the distribution of electoral material that provides advice
on how to cast an informal vote
141. Subsection 122(3) of the
Referendum Act contains a prohibition against the distribution of electoral
material that provides advice on how to cast an informal vote, and is a
counterpart to the now repealed subsection 329(3) of the Electoral Act.
142. Subsection 329(3) was repealed following a recommendation in the
JSCEM's report on the 1996 federal election. The Electoral Act was amended so
that it was no longer an offence to distribute material that provided advice on
how to cast a vote that depleted preferences but that votes cast using depleted
preferential voting would be deemed informal.
143. A similar amendment
removing the offence has not been made in the Referendum Act, but should be made
for consistency.
144. Item 105 repeals subsection 122(3) of the
Referendum Act to remove the offence of distributing material that contains a
representation of a ballot paper that is likely to induce an elector to mark the
ballot paper other than in accordance with the Referendum Act.
145. Item
106 amends subsection 122(4) of the Referendum Act to remove the reference to
subsection 122(3).
Schedule 1 - Items 107 and 121 – Inserting
evidentiary provisions relating to authorisation in the Referendum
Act
146. The Referendum Act contains no equivalent to section 385A of
the Electoral Act. Section 385A is an evidentiary provision which indicates
that a class of items containing authorisations, or the name and address of
printers, or the author’s name, can be used as evidence that the person
authorising the item, the printer or the author is the person authorising the
item, the printer or the author. This item was added to the Electoral Act by
the Electoral and Referendum Amendment Act 1992.
147. Item 107
will add an equivalent new section to the Referendum Act as new section 140AA.
148. Item 121 ensures that the provisions apply to offences committed
after the commencement of the section.
Schedule 1 - Item 109 – Removing an inaccurate reference from
Schedule 4 of the Referendum Act
149. Schedule 4 of the Referendum
Act contains the rules for the conduct of the preliminary scrutiny of
provisional votes at a referendum. Paragraph 6(b) deals with one of the
requirements for a pre-poll vote to be included in the further scrutiny, which
is that it has been signed in accordance with section 73G of the Referendum Act
and witnessed by the officer issuing the certificate.
150. The reference
to section 73G is inaccurate, as that section has been repealed. The paragraph
should refer to section 73D.
151. The item will amend paragraph 6(b) of
Schedule 4 of the Referendum Act to refer to section 73D rather than
73G.