REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022 Explanatory Memorandum

Commonwealth of Australia Explanatory Memoranda

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REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022

2022 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022 EXPLANATORY MEMORANDUM (Circulated by authority of Senator the Hon Don Farrell, Special Minister of State) 1

Glossary The following abbreviations and acronyms are used throughout this Explanatory Memorandum: Abbreviation Definition AEC Australian Electoral Commission ARO Assistant Returning Officer Bill Referendum (Machinery Provisions) Amendment Bill 2022 Criminal Code Criminal Code Act 1995 Crimes Act Crimes Act 1914 DRO Divisional Returning Officer Electoral Act Commonwealth Electoral Act 1918 ECL Electronic Certified List ICCPR International Covenant on Civil and Political Rights JSCEM Joint Standing Committee on Electoral Matters Item Refers to an Item in the Bill PVA Postal Vote Application PVC An envelope bearing a postal vote certificate Referendum Act Referendum (Machinery Provisions) Act 1984 Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014 2

REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022 GENERAL OUTLINE This Bill amends the Referendum Act to ensure a consistent voter experience across elections and referendums. The Referendum Act has not been used since 1999 and has not kept pace with the successive modernisations made to the Electoral Act, which have improved the efficiency, transparency and integrity of Australia's electoral process. This Bill ensures that referendums reflect contemporary federal election voting processes and extends transparency and integrity measures in the Electoral Act to support voter confidence in referendums. Many of the recent amendments to the Electoral Act have responded to recommendations of inquiries of JSCEM, including inquiries into the 2013, 2016 and 2019 federal elections. This Bill will extend the implementation of recommendations from those inquires to the referendum context. The Bill will also allow the Commonwealth to fund educational campaigns to promote voters' understanding of referendums and the referendum proposal. The House of Representatives Standing Committee on Social Policy and Legal Affairs' 2021 Inquiry into constitutional reform and referendums recommended the Government modernise the Referendum Act and the referendum process. The Bill also makes consequential amendments to the Electoral Act where relevant. Overview of the Bill Schedule 1 -- Postal voting Schedule 1 amends the Referendum Act to modernise postal voting in referendums, aligning it with the equivalent procedures in federal elections. This Schedule will also extend efficiencies in postal vote handling recently made to the Electoral Act to the Referendum Act, enhancing operational efficiencies for the AEC in the delivery of referendums. Schedule 2 -- Scrutiny Schedule 2 amends the Referendum Act to promote operational efficiencies in the sorting and counting of votes in referendums. These include allowing the early opening and sorting, but not counting, of pre-poll ordinary votes from 4pm on voting day, along with the extraction of declaration votes during preliminary scrutiny. These changes will support the timely scrutiny of pre- poll votes on the night of voting day, consistent with federal election processes. These measures replicate amendments to the Electoral Act, including extending a number of recommendations from previous JSCEM inquiries into the referendum context. 3

This Schedule will provide greater legislative clarity in relation to existing principles regarding the formality of referendum ballot papers. Schedule 3 -- Authorisations Schedule 3 amends the Referendum Act to update authorisation requirements to align with recent changes to the Electoral Act. These changes also strengthen information- gathering powers in the enforcement of authorisation requirements under the Referendum Act and prevent foreign campaigners from authorising referendum matter. Schedule 4 -- Referendum financial disclosure Schedule 4 amends the Referendum Act to establish a simplified financial disclosure and foreign donation restrictions framework for referendum campaigning based on Part XX of the Electoral Act, as recommended by the House of Representatives Standing Committee on Social Policy and Legal Affairs' 2021 Inquiry into constitutional reform and referendums. This will increase the transparency of campaign funding and those involved in campaigning, as well as limit foreign influence in referendums. This will require "referendum entities" - being individuals or organisations that spend over the disclosure threshold (set by the Electoral Act) - to report to the AEC the amount they spend on referendum campaigning, details of donations valued above the disclosure threshold and the total value of all donations received, including aggregated smaller donations below the disclosure threshold. Donors will also be required to report to the AEC the details of donations for referendum campaigning valued above the disclosure threshold. Schedule 4 also amends the Referendum Act to prohibit foreign donations of $100 or more for referendum campaigning, and prohibit foreign campaigners from fundraising or directly incurring referendum expenditure in a financial year equal to or more than $1,000, consistent with the Electoral Act. Schedule 5 -- Designated electors Schedule 5 amends the Referendum Act to extend the application of the designated elector framework to referendums. This will mean voters who are "designated electors" will be required to cast a declaration vote in referendums. Schedule 6 -- Contingency measures Schedule 6 amends the Referendum Act to enable the Electoral Commissioner to make modifications to certain aspects of a referendum during a declared emergency. This replicates amendments made to the Electoral Act by the Electoral Legislation Amendment (Contingency Measures) Act 2021, following JSCEM's 2021 Report of the inquiry on the future conduct of elections operating during times of emergency situations. 4

Schedules 7 and 8 -- Modernisation, terminology, and bulk amendments Schedules 7 and 8 make technical amendments to the Referendum Act to align it with recent process modernisations and terminology changes to the Electoral Act. FINANCIAL IMPACT Nil. STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill. The amendments have been assessed as compatible with Australia's human rights obligations. 5

Statement of Compatibility with Human Rights Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Referendum (Machinery Provisions) Amendment Bill 2022 The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill The Bill amends the Referendum Act, to align referendum machinery with contemporary electoral processes in the Electoral Act. As part of this alignment, the Bill creates a financial disclosure framework for referendum expenditure, extends the designated elector framework to referendums, enables the Electoral Commissioner to make limited operational modifications to referendum processes during a declared emergency, and prevents voters from being influenced by any indicative results from early sorting of ballot papers. Human rights implications 1. The Bill engages the following rights under the ICCPR: • the right to privacy under Article 17; • the right to freedom of expression under Article 19; • the right to freedom of association under Article 22; • the right to political participation under Article 25; and • the right to equal protection of the law under Article 26. Referendum financial disclosure 2. The Bill engages the right under Article 17 of the ICCPR as the amendments require the disclosure of donations to "referendum entities", which may contain personal information. 3. This requirement promotes the rights of citizens to participate meaningfully in referendums by assisting citizens to consider the impact of funded interests in referendum campaigns. It promotes accountability and transparency among referendum campaigners and donors in relation to their funding sources and expenditure, and reduces the risk of donors exerting undue influence over referendum processes. This objective cannot be achieved without disclosure of some personal information of those persons who choose to engage in campaigning. 4. The amendments are sufficiently circumscribed and precise so as not to constitute an arbitrary interference with the right to privacy. In particular, the disclosure requirements only apply to expenditure and donation amounts that reach the disclosure threshold (currently $15,200 and indexed to inflation). The requirements also apply only to an objectively defined group of persons and 6

entities who voluntarily choose to donate and incur "referendum expenditure" (which is defined narrowly), and apply only for a limited time during a referendum. The personal information included in a return will be limited to names, or in some cases names and nominated addresses. 5. The disclosure of such personal information through returns is already in place in relation to electoral expenditure and donations. The AEC published guides to support people engaging in electoral campaigning understand the return requirements. 6. Additionally, the AEC will be required to provide reports to the Minister on the operation of the Disclosure of referendum expenditure and gifts Part in relation to each referendum. This is aimed at increasing transparency, and is sufficiently narrow in the circumstances to achieve this transparency objective, noting that this information will also be publicly available through the AEC Transparency Portal. 7. The right to privacy under Article 17 of the ICCPR can be subject to permissible limitations where these limitations are authorised by law, not arbitrary, for a reason consistent with the ICCPR, and reasonable in the particular circumstances. 8. The amendments are authorised by law, are appropriate and proportionate to the legitimate end of supporting citizens to participate meaningfully in democratic processes, and are necessary to assist Australians in understanding and scrutinising the sources of significant funding and spending in referendum campaigns. Foreign campaigners and foreign donations 9. The Bill engages the rights under Articles 19, 22, and 26 of the ICCPR as it limits the communication of certain referendum information by foreign campaigners and restricts certain foreigners' expression of referendum matters and association with referendum campaigns in Australia. 10. The threat of foreign influence in democratic referendums can risk undermining democratic integrity, and has the potential to erode democracy by compromising trust in voting results and trust in political participants. The limit on foreign campaigners from authorising referendum matter, and restricting their donations and fundraising or direct incurrence of referendum expenditure, is a mechanism to counteract the effects of foreign influence in Australia's democracy and maintain Australians' trust in their referendums, which supports the protection of public order. Genuine freedom to vote at referendums requires freedom from undue influence or interference, and foreign-sourced campaigning or donations amount to an undue influence in a domestic public referendum debate. 11. For the same reasons, it is appropriate to make it unlawful to knowingly retain or use foreign donations to fund referendum expenditure, as this may create real or perceived issues of foreign interference among donation recipients, and therefore undermine the integrity of the referendum process. 12. These amendments, which are provided by law, are also sufficiently circumscribed and precise so as not to arbitrarily interfere with the above rights. 7

The authorisation prohibition is only for "referendum matter" (defined narrowly, with exceptions for a range of purposes including academic, educative and artistic purposes, news content and private communications), and the expenditure restriction only applies to referendum expenditure reaching $1,000 in the one financial year. 13. The donation restriction only applies to amounts reaching $100 in the limited "referendum expenditure period". This narrow scope is designed so that the amendments do not unduly affect the general, low-level, or incidental political activity of private individuals or entities. 14. The restrictions are limited to a category of person that expressly excludes Australian citizens, electors, permanent visa holders, entities that are incorporated or principally active in Australia and not owned by a foreign government, and others. These exclusions are designed so that individuals and entities that have a legitimate, long-term interest in Australian laws are not affected by the restrictions. 15. Further, the penalties for non-compliance with these new sections are consistent with existing penalties for equivalent provisions in relation to electoral matters, designed to deter the threat of foreign influence in democratic elections. 16. The Bill also engages the right under Article 17 of the ICCPR because the amendments expand the Electoral Commissioner's information-gathering powers to investigate possible contraventions of the new prohibition on foreign campaigners authorising referendum matter. The information gathered may contain personal information. 17. This expansion of the Electoral Commissioner's information-gathering powers is authorised by law and is intended to support the integrity of Australia's referendums by reducing both the real and perceived threat of foreign influence in Australia's democracy. 18. The objective of these measures is to facilitate the gathering of information that enables the Electoral Commissioner to regulate the potential influence of foreign campaigners over Australian referendums. This supports the legitimate objective of safeguarding the integrity of the referendum system, by ensuring that only those with a legitimate connection to Australia are able to influence Australian referendums through authorising referendum matter. 19. The information-gathering amendments are sufficiently circumscribed and precise so as not to constitute an arbitrary interference with the right to privacy, as the application of the provision is limited to persons the Electoral Commissioner has reason to believe has information or a document that is relevant to compliance with pre-existing section 110C or enforcement of section 110CA. These amendments support the implementation of investigative powers that already exist under the Act, but do not unduly expand those powers. 8

20. The rights under Articles 17, 19, 22 and 26 of the ICCPR can be subject to permissible limitations where these limitations are provided by law, not arbitrary, and are necessary for respect of the rights or reputation of others or for the protection of national security, public order, public health, or morals. 21. To the extent these amendments limit the rights in Articles 17, 19, 22, and 26 of the ICCPR, the limitation is necessary to ensuring that only those with a legitimate connection to Australia are able to influence Australian referendums. This limitation is proportionate to the legitimate objective sought and is reasonable and necessary in the circumstances, as public confidence that only those with a legitimate connection to Australia are able to influence Australian referendums is integral to public order and public confidence in the legitimacy of referendum results. Contingency measures 22. The Bill engages the rights under Article 19 and 22 of the ICCPR because the amendments enable the Electoral Commissioner, when a Commonwealth emergency declaration is in force, to allow and direct the manner in which certain core referendum activities are to be conducted at a polling place or pre-poll voting office, despite a Commonwealth, State or Territory law that may otherwise prohibit these activities. 23. These amendments enhance, rather than limit, participants' freedom to associate or express opinions and ideas. Referendums are a critical part of Australia's democratic system. The amendments are designed to ensure that voters, scrutineers, and campaigners can safely participate in a referendum where the effect of an emergency declaration would otherwise prohibit such participation and exercise. 24. Further, in allowing the core referendum activities to occur, the Electoral Commissioner can specify the manner in which these activities are to be conducted, which means the Electoral Commissioner can minimise the risk of harm to voters, scrutineers, campaigners, and AEC staff caused by the emergency. 25. These amendments, which are provided by law, are also sufficiently circumscribed and precise so as not to arbitrarily interfere with the right to freedom of expression and association, and operate only where necessary and entail conditions that are proportionate to the relevant circumstances of the declared emergency. 26. In this regard, it is notable that the modification powers of the Electoral Commissioner can be enlivened only if the Electoral Commissioner considers it necessary or conducive on reasonable grounds for the due conduct of the referendum. If this is satisfied, the Electoral Commissioner must notify both the Prime Minister and Leader of the Opposition in the House of Representatives in writing prior to exercising the powers, including the reasons why the Electoral Commissioner considers the proposed exercise necessary. Once exercised, the Electoral Commissioner must then publish the legislative instrument on the AEC website. 9

27. Further, the potential scope of the Electoral Commissioner's modifications is narrow. Any modifications are geographically limited, in that the affected locations must be under an emergency declaration and the Electoral Commissioner must be satisfied on reasonable grounds that the emergency declaration would interfere with the referendum in those locations. The modifications then automatically cease to have effect once the emergency declaration ends or the referendum writ is returned, whichever is earlier. 28. The amendments also empower the Minister to expand the list of applicable emergency laws so that the contingency measures can be updated in case a novel or sudden emergency is not covered by the existing list of emergency laws. In relation to this power to expand the list of applicable Commonwealth emergency laws by legislative instrument, an emergency must still be declared in accordance with one of those additional laws in order to enliven the Electoral Commissioner's powers. Further, the legislative instrument would be subject to disallowance in accordance with the Legislation Act 2003, and may be disallowed by either House within a certain time after the instrument is tabled in the Parliament. 29. Therefore, to the extent these amendments limit the rights in Articles 19 and 22 of the ICCPR, the limitation is proportionate to the legitimate objective sought and is reasonable and necessary in the circumstances, as the limitation is to ensure that voters can safely participate and exercise their democratic right to vote in referendums during declared emergencies. Designated electors 30. The Bill engages the right of political participation under Article 25 of the ICCPR, because it provides a mechanism for the restriction of the methods in which certain persons can vote at a referendum. 31. The amendments provide that "designated electors" - being persons who the Electoral Commissioner reasonably suspects of having voted more than once in a referendum or federal election - may vote in a referendum by declaration vote only. This safeguard applies at all polling places, some of which do not have an ECL to upload or download data to indicate which voters have already voted. 32. These amendments are intended to provide a mechanism for ensuring that only the first declaration vote received from a designated elector is admitted to the scrutiny process. This reduces instances of multi-voting and is consistent with the 'one vote, one value' principle of a democracy, whereby each voter has an equal right to cast a single ballot in any election or referendum. 33. The right to political participation under Article 25 of the ICCPR can be subject to permissible limitations, where these limitations are authorised by law and not arbitrary. In order to be permissible, the limitation must be prescribed by law and be reasonable in the particular circumstances. 34. The amendments' limitation on the right under Article 25 is proportionate to the legitimate end sought and is reasonable and necessary in the circumstances. The 10

limitation on the right is proportionate because the restriction only applies to persons whom the Electoral Commissioner reasonably suspects have voted more than once in the same federal election or referendum, and the limitation is reasonable and necessary because it does not deprive designated electors of their legal right to cast a vote. Preventing early disclosure of voting results 35. The Bill engages the right to freedom of expression under Article 19 of the ICCPR because the Bill prohibits scrutineers between 4pm and close of voting on voting day from disclosing information relating to the early opening and sorting of pre- poll ordinary ballot papers. 36. These amendments are intended to protect voters who are yet to vote in the last two hours of voting, by preventing the release of any indicative information or results obtained during the early opening and sorting of pre-poll ordinary votes. This protects those voters from being unduly influenced by such indicative results. 37. These amendments, which are provided by law, are sufficiently circumscribed and precise so as not to arbitrarily interfere with the right to freedom of expression. The disclosure prohibition applies only for a brief period of time, and applies only to disclosure outside the counting centre. This achieves the legitimate objective of the amendments without preventing scrutineers from fulfilling their functions during early opening and sorting. 38. To the extent these amendments limit the right in Article 19 of the ICCPR, the limitation is proportionate to the legitimate objective sought and is reasonable and necessary in the circumstances, as the limitation ensures voters who are yet to vote maintain their right to do so without undue influence from early results. Conclusion The Bill is compatible with human rights because, to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate to the end sought. 11

REFERENDUM (MACHINERY PROVISIONS) AMENDMENT BILL 2022 NOTES ON CLAUSES Clause 1 - Short title 1. Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Referendum (Machinery Provisions) Amendment Act 2022 (the Act). Clause 2 - Commencement 2. Subclause 2(1) provides that the provisions in column 1 of the table (Commencement table) commence at the time set out in column 2 of the table. 3. Item 1 in the Commencement table provides that the whole of the Act commences the day the Act receives the Royal Assent. 4. A Note is inserted below the Commencement table, stating that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments of the Act. 5. Subclause 2(2) provides that information in column 3 of the Commencement table is not part of the Act. Information may be inserted into column 3, or information in column 3 may be edited, in any published version of the Act. Clause 3 -- Schedules 6. This clause provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms. Clause 4 - Disapplication of section 11 of the Referendum (Machinery Provisions) Act 1984 7. This provision temporarily suspends the operation of section 11 of the Referendum Act for the period from when this amendment commences until the end of polling day for the first general election of the members of the House of Representatives held after its commencement. 8. Section 11 contains requirements relating to the distribution of an "official pamphlet" containing arguments for and against a proposal, authorised by parliamentarians, to every enrolled household. Subsection 11(4) also contains provisions that place restrictions on the use of Commonwealth funding in respect of the presentation of arguments for and against a proposal beyond that pamphlet and a narrow set of related purposes. 9. It has been over 100 years since the introduction of the official pamphlet and its form has changed very little since 1912. It is also the only official material provided to electors prior to a referendum. Since that time, the methods of communication have changed significantly. In 2022, it is appropriate to ask 12

whether there is a more effective way to engage and inform the Australian public about the Constitution and proposed constitutional change. 10. Temporary suspension will ensure there is more than one way to communicate with electors before a referendum, and allows parliamentarians to choose how, and when to engage with their relevant constituencies. 11. Further, as the House of Representatives Standing Committee on Social Policy and Legal Affairs observed in relation to the restriction in subsection 11(4) of the Referendum Act, "there are legitimate reasons for the Government to spend money in a referendum campaign outside the scope of what is currently permitted, under section 11(4) of the Referendum Act, including to conduct a neutral education campaign and to support the arguments for and against the proposed constitutional amendment. These activities are consistent with modern expectations for how governments seek to inform the community about issues of public importance" (Inquiry into constitutional reform and referendums at 4.154). 12. Temporary suspension of subsection 11(4) is also consistent with the approach in the 1999 referendum and proposed 2013 referendum. As a temporary measure, this provision would not apply to any referendum held in a future term of Parliament and allows these restrictions to be considered by future Parliaments for future referendums as appropriate. Schedule 1--Postal voting 13. The House of Representatives Standing Committee on Social Policy and Legal Affairs' Inquiry into constitutional reform and referendums recommended that the Referendum Act, and the referendum process more generally, be modernised in advance of any future referendum (Recommendation 10). 14. This Schedule and the following Schedules respond to this recommendation by seeking to align the Referendum Act with the more contemporary machinery of the Electoral Act. 15. Schedule 1 amends the Referendum Act to harmonise postal voting requirements for referendums with equivalent processes in the Electoral Act. The amendments streamline postal voting processes to support a consistent voter experience across federal electoral and referendum events, and implement JSCEM recommendations about overseas postal voters. Referendum (Machinery Provisions) Act 1984 16. Item 1 inserts new subsection 3(6) at the end of section 3 of the Referendum Act. This allows the AEC flexibility to provide PVCs in the approved form, but not necessarily printed on an envelope, and to process a PVC placed inside an envelope as if it were a PVC printed on an envelope. This aligns requirements for referendum PVCs with the Electoral Act equivalent. 13

17. Officials will continue to be required to check voter details from the PVC to mark off a person against their entry on the Electoral Roll to ensure the integrity of the voting process. 18. Item 2 repeals subsection 25(4) to remove the strict requirement for postal ballot papers in referendums to have "Postal Ballot-paper" as a heading and the exact words "Fold the ballot-paper, place it in the envelope on which the postal vote certificate is printed and fasten the envelope". This aligns with amendments to the Electoral Act that removed the unnecessary prescriptive instructions and allowed greater flexibility to use plain-English instructions to assist postal voters. 19. Item 3 repeals subsection 25(6) and is consequential to Item 2 above, as subsection 25(6) has no effect without subsection 25(4). 20. Items 4-7 clarify that applications for provisional enrolment and PVAs can be made following the issue of the writ for the referendum. This removes any ambiguity about when an elector can apply for provisional enrolment and a postal vote. 21. Item 8 repeals section 61A to remove the requirement for PVAs to be forwarded to the DRO of the Division in which the applicant is enrolled. The equivalent section in the Electoral Act was repealed by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. 22. This measure centralises processes for handling both online and paper-based PVAs and will enhance operational efficiencies for the AEC in the delivery of referendums. This amendment recognises that the majority of PVAs are now submitted online and therefore do not require physical forwarding to the DRO for the Division in which the applicant is enrolled. 23. Item 9 inserts new subsection 65(1AA) after subsection 65(1). This is a consequential amendment to Item 1 above and provides the process to complete the voter declaration and authorised witness declaration when a PVC is placed inside the envelope, not printed on the envelope. This is consistent with equivalent provisions in the Electoral Act. 24. Items 10, 11 and 12 amend section 65 of the Referendum Act to facilitate both paper-based and electronic processes for postal voters outside Australia to securely self-certify their PVC by providing official evidence of identity documentation where they are unable to find an "authorised witness". These items replicate recent amendments made to the Electoral Act by the Electoral Legislation Amendment (Counting, Scrutiny, and Operational Efficiencies) Act 2021, which in turn respond to recommendations 19 and 16 of the JSCEM's reports on the 2016 and 2013 federal elections, respectively. 25. Item 10 repeals existing paragraph 65(1A)(a) and substitutes new paragraph 65(1A)(a) to allow a postal voter outside Australia the option to electronically submit a statement explaining why they were unable to comply with the authorised witness requirements, consistent with the equivalent process for federal elections in the Electoral Act. 14

26. Item 11 repeals existing paragraph 65(1A)(c) and substitutes new paragraphs 65(1A)(c) and (d). These new paragraphs set out the requirements for an overseas postal voter to include their passport details where they are unable to find an "authorised witness". 27. Item 12 inserts new subsections 65(1B) and (1C) after subsection 65(1A). New subsection 65(1B) specifies the details that are required from the copy of the elector's passport when self-certifying their identity. 28. New subsection 65(1C) provides that subsection 8(1), Division 2 of Part 2 and Division 3 of Part 2 of the Electronic Transactions Act 1999 (ETA) apply to new subparagraphs 65(1A)(a)(ii) and (iii) and new paragraph 65(1A)(d). As Part IV of the Referendum Act is exempt from the operation of the ETA as per item 78 of Schedule 1 of the Electronic Transactions Regulations 2020, the application of the ETA to the new provisions is necessary to ensure that the postal voter has the option to comply with them electronically. 29. These amendments recognise that it is not always possible for a voter overseas to find an authorised witness, especially during local disruptions. The amendments do not allow a postal voter to electronically send their PVC or postal ballot paper. For the avoidance of doubt, voting itself remains a paper-based process. 30. Item 13 adds new section 71AA at the end of Part IV and sets out postal vote vote-saving provisions, consistent with section 200 of the Electoral Act. New subsection 71AA(1) provides that a postal vote must not be rejected because of a mistake in spelling if the elector's intention is clear. This enhances the franchise by expressly preventing a postal vote from being invalidated simply because of a minor spelling mistake on the PVC (for example, a misspelled address). 31. New subsection 71AA(2) provides that a postal vote received alongside a PVC in an outer envelope is not to be rejected because the postal vote is not inside the sealed PVC. 32. New subsection 71AA(3) provides that the outer envelope is to be treated as if it were a PVC purporting to contain a postal ballot paper or postal vote. 33. New subsection 71AA(4) provides that, despite new subsection 71AA(3), the following provisions apply only in relation to the envelope bearing the PVC: • paragraphs 67(2)(c), (d) and (e), which relate to the endorsement, signing, and recording of PVCs; • section 68, which restricts the opening of envelopes purporting to contain a postal ballot paper on which a vote has been recorded; and • paragraph 6 of Schedule 4, which relates to information contained in a PVC scrutinised during preliminary scrutiny. 34. Item 14 provides that amendments made by Schedule 1 will apply in relation to referendums the writs for which are issued on or after the commencement of this Schedule. 15

Schedule 2--Scrutiny 35. Schedule 2 amends the Referendum Act to align the process for conducting the scrutiny with equivalent processes in the Electoral Act. Referendum (Machinery Provisions) Act 1984 36. Item 1 inserts a Note at the end of section 24 to direct readers to new subsection 93(9) inserted by Item 10 below, which relates to formality. 37. Items 2, 6 and 7 amend sections 27, 73CA and 89 respectively, to provide that scrutineers appointed under that section are to be appointed in the approved form. This aligns with the Electoral Act requirement to appoint scrutineers in writing. 38. Item 3 resolves an inconsistency between subsection 51(11) and paragraph 6A of Schedule 4 to the Referendum Act to clarify when a declaration vote should be accepted if the AEC receives two or more declaration votes from the same elector. This is consistent with recent amendments to the Electoral Act made by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. 39. Item 4 inserts new subsections 73AA(1AA) and 73AA(1AB), which establish a 12 day statutory limit on the pre-poll voting period. This will align pre-poll voting for referendums with pre-poll voting for elections, and the period during which mobile polling may be made available as set by section 51 of the Referendum Act. 40. New subsection 73AA(1AA) provides that the pre-poll voting period must not be earlier than the day that is 12 days before the voting day for the referendum. 41. New subsection 73AA(1AB) provides that pre-poll voting is not to occur in a State or Territory on a day that is a public holiday in that State or Territory. This prohibition does not include localised public holidays that apply only to a part of the State or Territory. 42. This amendment is intended to ensure voters retain significant opportunity to vote via pre-poll, while also attaining the benefits that a more clearly defined pre-poll period provides to the AEC, such as providing additional time to secure the most appropriate pre-poll facilities and allows more certainty in planning for all participants in the referendum process. 43. These changes replicate amendments made to the Electoral Act by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. In turn, that Act responded to JSCEM's Report on the conduct of the 2016 federal election and matters related thereto, which recommended that the Electoral Act be amended to restrict pre-poll voting to no more than two weeks. 44. Item 5 is a consequential amendment to the insertion of new subsections 73AA(1AA) and 73AA(1AB). 16

45. Items 8, 9, and 10 amend section 90 of the Referendum Act to enable the early opening and sorting of pre-poll ballot papers. 46. Item 8 inserts "(subject to subsection (1A))" after "referendum" in paragraph 90(1)(a) and is consequential to Items 9 and 10 below. 47. Item 9 inserts new subparagraph 90(1)(e)(iiia). This new subparagraph provides that for a pre-poll ordinary ballot-box being dealt with before the close of voting in accordance with new subsection 90(1A), the ballot papers are to be unfolded and sorted into a group for votes given in favour of the proposed law, a group for votes given not in favour of the proposed law, and a group for informal votes. This is consequential to Item 10 below. 48. Item 10 inserts new subsection 90(1A). This allows for the opening of pre-poll ordinary ballot boxes and the removal and sorting of ballot papers from 4pm on voting day. It also provides that scrutineers present during any of these actions cannot object to a ballot paper before the close of voting at 6pm. No counting of the ballot papers can occur until after close of voting at 6pm. 49. These amendments do not affect the ability of a scrutineer to challenge a ballot paper from 6pm on voting day. All ballots sorted prior to the close of voting must be permitted full scrutiny and objection after 6pm, as if they were being witnessed for the first time. This amendment brings the Referendum Act into alignment with recent amendments to the Electoral Act, as amended by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021, which in turn implemented recommendation 12 of JSCEM's Report on the conduct of the 2019 federal election and matter related thereto. 50. With the increasing amount of voters voting via pre-poll, this amendment assists the AEC in promptly undertaking the scrutiny process. 51. Item 11 inserts new subsections 90(3), (4) and (5) at the end of section 90. New subsection 90(3) prohibits a scrutineer from disclosing or communicating information that relates to the early sorting of pre-poll votes until after the close of voting. The penalty for contravention of this provision is imprisonment for 6 months or 10 penalty units, or both. This amendment is consequential to Item 10 above which permits the AEC to commence unfolding and sorting (but not counting) of pre-poll ordinary votes from 4pm on voting day for the referendum, but ensures that no early information is communicated outside of the counting centre. This section also includes a Note to direct readers to section 116, which is an offence provision for officers and scrutineers to observe secrecy. 52. New subsection 90(4) provides that a scrutineer who commits any breach of section 90, or who is guilty of misconduct, or who fails to obey the lawful directions of the presiding officer, may be removed from the counting centre by any constable or by a person authorised by the presiding officer to remove the scrutineer. 17

53. New subsection 90(5) clarifies that "counting centre" means premises being used for the purposes of the scrutiny or counting of ballot papers for a referendum. 54. Item 12 adds new subsection 93(9) at the end of section 93. Voters come from a range of cultural and educational backgrounds. It is critical that voting is, and remains, accessible to all, and that voters are not unintentionally disenfranchised due to limitations with spelling or writing where the voter's intention is clear. 55. Existing subsection 93(8) ensures that voters who mark a ballot paper other than in strict compliance with section 24 will have their votes counted as long as their intention is clear from their ballot paper. For example, if a voter marked their ballot paper with a "Y" or an "N" instead of the full words "Yes" or "No", without otherwise marking the ballot paper, this would indicate a clear intention respectively to approve or not approve the proposed law. 56. New subsection 93(9) provides greater legislative certainty regarding the operation of section 93(8) in that particular case, by providing that: • if a voter writes the letter "Y" in the space provided on the ballot paper, it is to be presumed that the voter has intended to vote to approve the proposed law; and • if a voter writes the letter "N" in the space provided on the ballot paper, it is to be presumed that the voter has intended to vote to not approve the proposed law. 57. These presumptions can be rebutted if the elector marks their ballot paper in such a way as to make their intention unclear (in which case their ballot paper will be taken to be informal under paragraph 93(1)(b)), or to indicate a contrary intention (in which case the voter will be taken to have approved or not approved the proposed law according to the intention conveyed) under existing subsection 93(8) of the Referendum Act. 58. For the avoidance of doubt, this new subsection seeks to provide greater legislative clarity of the existing principles regarding the formality of ballot papers. The inclusion of subsection 93(9) does not limit the circumstances in which a voter can be taken to have expressed a clear intention to approve or not approve a proposed law, other than writing "Yes" or "No" in the space provided. In all cases, in seeking to ascertain the intention of the voter, each ballot paper will be construed as a whole, and effect given to the voter's intention, so far as that intention is clear from the writing or other marks on the ballot paper. 59. Items 13, 14, and 15 amend Schedule 4 to provide the DRO with the option to extract declaration votes from their envelopes up to five days prior to voting day. Ballot papers withdrawn from envelopes under this process shall be placed in a secure ballot-box by themselves for further scrutiny following the close of polls. The penalty for contravention of this provision is 10 penalty units. 60. Items 13 and 14 are consequential amendments to Item 15 below. 18

61. Item 15 inserts new paragraph 17 in Schedule 4 to outline the process by which the DRO can undertake the early extraction of declaration votes in preliminary scrutiny. This amendment brings the Referendum Act into alignment with the Electoral Act, as amended by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021, which in turn responds to recommendation 12 of JSCEM's Report on the conduct of the 2019 federal election and matter related thereto. 62. Item 16 provides that the amendments made by the Schedule apply in relation to referendums the writs for which are issued on or after the commencement of the Schedule. Schedule 3--Authorisations 63. This Schedule replicates more recent updates to the Electoral Act with respect to the authorisation of referendum matter. This will ensure consistency of authorisation requirements across federal election and referendum events. Referendum (Machinery Provisions) Act 1984 64. Item 1 inserts a reference to the definition "referendum matter" in the Interpretation provisions of subsection 3(1) of the Referendum Act. This refers the reader to the definition of referendum matter in new section 3AA of the Act inserted by Item 2 below. 65. Item 2 inserts new section 3AA which defines "referendum matter". This updates the existing definition of referendum matter in the Referendum Act in section 110A, and moves this definition into the general interpretation provisions of the Referendum Act. 66. New subsection 3AA(1) defines "referendum matter" as matter that is communicated, or intended to be communicated, for the dominant purpose of influencing the way electors vote at a referendum. This aligns with the definition of "electoral matter" inserted into the Electoral Act by the Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018. 67. Consistent with definition of "electoral matter" in the Electoral Act, new subsections 3AA(2)-(5) provide further clarity about the operation of the definition of "referendum matter". 68. New subsection 3AA(2) provides that each creation, recreation, communication or recommunication of matter is to be treated separately for the purposes of determining whether matter is referendum matter. 69. New subsection 3AA(3) clarifies that if more than one proposed law for the alteration of the Constitution is submitted to electors on a day, the dominant purpose of the communication or intended communication of matter is to be determined as if all of the proposed laws submitted to electors on that day were a single referendum. 19

70. New subsection 3AA(4) provides a rebuttable presumption that the dominant purpose of the communication or intended communication of matter that expressly promotes or opposes a proposed law for the alteration of the Constitution is referendum matter, unless the contrary is proved. 71. New subsection 3AA(5) sets out matters that must be taken into account in determining the dominant purpose of the communication or intended communication. These include: • whether the communication or intended communication is or would be to the public or a section of the public; • whether the matter contains an express or implicit comment on a proposed law for the alteration of the Constitution; • whether the communication or intended communication is or would be received by electors near a polling place; • how soon a referendum is to be held after the creation or communication of the matter; and • whether the communication or intended communication is or would be unsolicited. 72. New subsection 3AA(6) provides important exceptions for when matter is not referendum matter. This replicates the equivalent exceptions of electoral matter in subsection 4AA(5) of the Electoral Act. A Note following new subsection 3AA(6) notes that a person who wishes to rely on an exception bears the evidential burden. 73. It is appropriate to place the burden of proof on the defendant in this context because it will be peculiarly within the knowledge of the defendant whether the communication or intended communication of the matter meets an exception as provided by new subsection 3AA(6). That is, the defendant has full knowledge as to whether they have completely met the criteria for the offence-specific defence, and may be able to provide evidence to this. 74. Consequential to Items 1 and 2 above, Item 3 repeals the definition of "referendum matter" in section 110A. 75. Item 4 updates the definition of "disclosure entity" in section 110A of the Referendum Act. This update repeals existing paragraph (e) of the definition, which relates to persons and entities that incur expenditure in the 12 months before the issue of the writ for the referendum, or expect to incur expenditure, on referendum matter over the disclosure threshold. Item 4 then replaces this with the new concept of "referendum entity". 76. Item 4 further updates the definition of "disclosure entity" to include new paragraph 110A(ea) to include significant third parties (within the meaning of Part XX of the Electoral Act) as disclosure entities in the referendum context. This aligns with the inclusion of significant third parties as disclosure entities in the Electoral Act. 20

77. Status as a disclosure entity determines the manner in which a notifying entity is required to authorise "referendum matter" under section 110C. These changes make it clear that referendum entities that are significant third parties will be required to authorise referendum matter as a "disclosure entity". Notifying entities that are not disclosure entities will still be required to authorise referendum matter, consistent with the existing requirements in subsection 110C(5) of the Referendum Act. 78. Items 5, 6 and 7 are consequential to Item 12 below. 79. Item 5 inserts new paragraph 110B(1)(d), which provides an overview of the objects of Part IX to promote free and informed voting. This clarifies that the objects of Part IX of the Referendum Act include the enhancement of the integrity of the electoral system by ensuring that only those with a legitimate connection to Australia are able to influence Australian referendums. 80. Item 6 inserts new paragraph 110B(2)(c). This provides that Part IX aims to achieve its objects by, among other things, restricting the communication of referendum matter authorised by foreign campaigners. The additions of Items 5 and 6 replicate relevant parts of the object provisions of Part XXA (Authorisation of electoral matter) of the Electoral Act. 81. Item 7 is a consequential, technical amendment to the provisions introduced by Item 12 below that clarifies that the authorisations provisions do not apply to contraventions of the foreign campaigner provisions. 82. Item 8, 9, 10 and 11 amend items 1, 3, 5 and 7 in the table in subsection 110C(5). The amendment removes the requirement for authorisation particulars to include the name and address of the printer who communicated the communication. This replicates recent amendments to the Electoral Act made by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. 83. Item 12 inserts new section 110CA. New subsection 110CA(1) prohibits "foreign campaigners" from authorising certain electoral matter and provides a civil penalty for breach of the prohibition. The addition of this section and related consequential amendments aligns the Referendum Act with changes made to the Electoral Act by the Electoral Legislation Amendment (Foreign Influences and Offences) Act 2022. It will ensure the rules regarding the authorisation of referendum matter operate consistently with the policy intention of the restrictions on foreign donations to referendum campaigners inserted by Item 5 of Schedule 4 below, and consistent with foreign donations restrictions in the Electoral Act. 84. New section 110CA uses the definition of "foreign campaigner" from sections 4 and 287AA of the Electoral Act, which covers each of the following: • a body politic of a foreign country, or part of such a body politic; • a body politic of a part of a foreign country, or part of such a body politic; • a foreign public enterprise (defined in section 287 of the Electoral Act); 21

• an entity (whether or not incorporated) that does not meet any of the following conditions: o the entity is incorporated in Australia; o the entity's head office is in Australia; o the entity's principal place of activity is, or is in, Australia; or • an individual who is none of the following: o an elector (defined in section 4 of the Electoral Act); o an Australian citizen; o an Australian resident; or o a New Zealand citizen who holds a Subclass 444 (Special Category) visa under the Migration Act 1958 (or if that Subclass ceases to exist, the kind of visa that replaces that Subclass). 85. New subsection 110CA(1) sets out the elements of the offence. A "foreign campaigner" contravenes subsection 110CA(1) if referendum matter is communicated and either: • the matter is a referendum advertisement and all or part of the distribution or production of the advertisement was paid for, and the content of the advertisement was approved by the foreign campaigner (whether or not the foreign campaigner paid for the distribution or production of the advertisement); or • the matter forms part of a sticker, fridge magnet, leaflet, flyer, pamphlet, notice or poster and the content of the matter was approved by the foreign campaigner; or • the foreign campaigner communicates the matter and the matter is not an advertisement already proscribed under this section, nor does the matter form part of a sticker, fridge magnet, leaflet, flyer, pamphlet, notice or poster. 86. New subsection 110CA(2) provides exceptions to the prohibition created by subsection 100CA(1). Consistent with the Electoral Act, these include where the matter forms part of opinion polls or research relating to voting intentions at a referendum, is communication for personal purposes, is an internal communication of the foreign campaigner, or is a communication communicated at a meetings of two or more persons that falls within the exception circumstances. 87. A Note is inserted after paragraph 110CA(2)(f) to provide that a person who wishes to rely on subsection 110CA(2) bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act). 88. It is appropriate to place the burden of proof on the defendant in this context because it will be peculiarly within the knowledge of the defendant whether the referendum matter meets an exception as provided by new subsection 110CA(2). That is, the defendant has full knowledge as to whether they have completely met the criteria for the offence-specific defence, and may be able to provide evidence to this. Additionally, it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter. 22

89. New subsection 110CA(3) sets out the application of the prohibition and civil penalty to foreign campaigners that are not legal persons. Where a foreign campaigner that is not a legal person contravenes subsection 110CA(1), the contravention is taken to have been committed by each member, agent or officer (however described) of the foreign campaigner who, acting in their actual authority or apparent authority, engaged in the conduct or made the omission constituting the contravention. 90. Four Notes are also included at the end of new subsection 110CA(3) that provide supporting detail about the new section and direct the reader to other relevant provisions in the Referendum Act. 91. Items 13 and 14 are consequential amendments to Item 12 so that new section 110CA has the same extended geographical application (provided by section 110D) as section 110C. 92. Item 15 is a consequential amendment to Item 12 that extends the operation of section 110E of the Referendum Act to enable the Electoral Commissioner to obtain information and documents relevant to assessing compliance with the authorisations provisions in existing section 110C of the Referendum Act to include new section 110CA. 93. Item 16 inserts new subsection 110E(4A). This strengthens the enforcement provisions of the Electoral Commissioner's information gathering powers for assessing compliance with authorisations requirements by making it an offence for a person or entity to contravene a notice given by the Electoral Commissioner under subsection 110E(2). There is a maximum civil penalty of 200 penalty units for breach of subsection 110E(4A). 94. Item 17 is a consequential provision to Item 16 that requires a notice given by the Electoral Commissioner to a person under section 110E to include the fact that it is an offence for the person or entity to contravene the notice. 95. Items 18 and 19 are consequential amendments to Items 8-11 to remove references to a printer who communicated referendum matter in section 140AA of the Referendum Act. 96. Item 20 is an application provision. It clarifies that new section 110CA applies in relation to referendum matter communicated on or after the commencement of Schedule 3, regardless of when the writ for the referendum to which the communication relates was issued or when the content of the matter was approved. It further clarifies that amendments made by section 110E will apply in relation to notices given after the commencement of this Schedule. Schedule 4--Referendum Financial Disclosure 97. In December 2021, the House of Representatives Standing Committee on Social Policy and Legal Affairs handed down the recommendations of its Inquiry into constitutional reform and referendums. This included the recommendation that 23

the Referendum Act be amended, consistent with relevant provisions in Part XX of the Electoral Act, to: • prohibit referendum campaign organisations from receiving gifts or donations of $100 or more from foreign donors; and • require referendum campaign organisations to disclose gifts or donations above a certain threshold. 98. At 4.157, the Committee observed there should be greater transparency in relation to donations in a referendum campaign, and a restriction on foreign donations. In this regard, the Committee considered that provisions for the regulation of donations in the Referendum Act should in so far as possible mirror those contained in the Electoral Act. 99. This Schedule implements these recommendations as part of the establishment of a financial disclosure framework for referendum campaigning and restrictions on foreign donations and expenditure. This is based on a simplified version of the existing Part XX of the Electoral Act and will increase transparency of the expenditure incurred and donations received by persons and entities engaging in referendum campaigning, and support the integrity of referendum processes. 100. While this Schedule primarily amends the Referendum Act, it also makes consequential amendments to the Electoral Act. Part 1--Main amendments Referendum (Machinery Provisions) Act 1984 101. Item 1 inserts new definitions into subsection 3(1) of the interpretation provisions of the Referendum Act. These are to apply to all parts of the Referendum Act but are principally relevant to new Part VIIIA of the Act, inserted by Item 3 of this Schedule. 102. Where these definitions exist in the Electoral Act - "disclosure threshold", "foreign campaigner", "foreign donor", "gift" and "scheme" - they refer back to the definitions in the Electoral Act. This ensures these key definitions will remain consistent across the Referendum Act and Electoral Act over time. 103. Where these are new definitions relevant only in a referendum context - "referendum entity", "referendum expenditure" and "referendum expenditure period" - they are defined in the Referendum Act: • referendum entity means a person or entity who incurs referendum expenditure during a referendum expenditure period that exceeds the disclosure threshold. • referendum expenditure has the meaning given by new section 3AAA, which is inserted by Item 2 of this Schedule. 24

• referendum expenditure period means the period starting on the day that is six months before the writ for a referendum is issued and ending on the voting day for the referendum. 104. Subsection 9(2) of the Referendum Act provides that the day for taking the votes of electors at a referendum shall not be less than 33 days and not more than 58 days after the issue of the writ. This means a "referendum expenditure period" will begin from a minimum of approximately seven months to a maximum of approximately eight months before the voting day for a referendum. 105. Item 2 inserts new section 3AAA. New subsections 3AAA(1) and (2) define "referendum expenditure". This is based on the definition of "electoral expenditure" in the Electoral Act, adapted to a referendum context. 106. Referendum expenditure is defined as expenditure incurred for the dominant purpose of creating or communicating referendum matter, with exceptions for expenditure incurred by service providers. 107. An updated definition of referendum matter is inserted into the Referendum Act by Item 2 of Schedule 3 above. It defines referendum matter to mean matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote at a referendum. 108. Two Notes follow subsection 3AAA(2) to help illustrate the operation of the definition of referendum expenditure. 109. New subsection 3AAA(3) provides that in circumstances where more than one proposed law for the alteration of the Constitution is submitted to electors on the same day, expenditure is to be taken in aggregate. This means referendum entities and donors will have a single reporting obligation. 110. Item 3 inserts new Part VIIIA--Disclosure of referendum expenditure and gifts into the Referendum Act. This Part introduces a framework for the disclosure of referendum expenditure and donations and restricting foreign donations for referendum campaigning. Part VIIIA is a simplified version of the framework for the disclosure of electoral expenditure and donations established in Part XX of the Electoral Act. Division 1--Preliminary 111. Division 1 of Part VIIIA sets out preliminary matters for this new Part. 112. New paragraph 109B(a) provides that in Part VIIIA a reference to a referendum entity does not include a reference to the Commonwealth, a State or a Territory. This means the Commonwealth, a State or a Territory will not be subject to the obligations of referendum entities under this Part (for example, providing a referendum expenditure return under new section 109E). Commonwealth, State and Territory spending on matters related to the referendum is reported through processes like annual Budget appropriations and grants reporting processes. 25

113. New paragraph 109B(b) provides that in Part VIIIA a reference to a gift does not include a reference to a gift by the Commonwealth, a State or a Territory. This means referendum entities do not need to report gifts made by the Commonwealth, a State or a Territory in the total value of donations received in a return under new section 109E or the details of gifts received in a return under new section 109F, nor does the Commonwealth, a State or a Territory need to provide a donor return under section 109G. Commonwealth, State and Territory bodies typically report funding, such as grants, through grant reporting processes. Where such gifts are used to incur referendum expenditure in the referendum expenditure period these will still need to be reported in total referendum expenditure under new section 109E. 114. New section 109C provides that if any regulations are in force for the purposes of subsection 287(5) of Part XX of the Electoral Act, which relate to principles for determining the value of a gift consisting of or including a disposition of property other than money, these regulations will apply to determining the value of gifts under Part VIIIA. While there are currently no regulations in force for this purpose, this new section 109C ensures that the value of gifts will be determined consistently for referendums and elections into the future. 115. New section 109D replicates relevant parts of the Electoral Act to clarify when referendum expenditure is taken to be incurred, or when a provision of Part VIIIA is taken to be contravened, by an entity that is not a legal person (such as an unincorporated association) for the purposes of the Referendum Act and the Regulatory Powers Act. In relation to incurring referendum expenditure, this is when the expenditure incurred was done so by or with the authority of any member or officer (however described) of the entity acting in their actual or apparent authority. In relation to a contravention of Part VIIIA, this is when each member or officer (however described) of the referendum entity, acting in that person's actual or apparent authority, engaged in any conduct or made any omission contributing to the contravention. Division 2--Disclosure of referendum expenditure and gifts 116. Division 2 of Part VIIIA sets out the disclosure and returns obligations for referendum entities and donors to referendum entities. 117. New section 109E establishes a framework for returns by referendum entities. This adapts the provisions for candidate returns for electoral expenditure and third party annual returns of Part XX the Electoral Act. 118. New subsection 109E(1) requires a person or entity that was a referendum entity at any time during the referendum expenditure period to provide a return disclosing the information about referendum expenditure and donations for that purpose. "Referendum entity" and "referendum expenditure period" are defined in Item 1 above. 119. This means that a person or entity incurring referendum expenditure over the disclosure threshold at any time during the period beginning six months before 26

the issue of the writs for a referendum and ending on voting day must provide a return ("a referendum entity return"). 120. A Note is inserted under subsection 109E(1) alerting readers that a return under section 109E must be published by the Electoral Commissioner on the Transparency Register. 121. Subsection 109E(1) imposes a civil penalty provision for failure to comply with the requirement to provide a referendum entity return. This is a maximum of the higher of 60 civil penalty units or of three times the amount the referendum expenditure not disclosed (if there is sufficient evidence for the court to determine that amount, or an estimate of that amount). This is consistent with penalties for non-compliance with equivalent returns obligations under the Electoral Act. 122. New subsection 109E(2) sets out the information that the referendum entity must include in a referendum entity return. This is: • the details of the referendum expenditure incurred by or with the authority of the referendum entity during the referendum expenditure period; • the total value of gifts covered by subsection 109E(3) that were received by the referendum entity during the referendum expenditure period, and the total number of persons and entities who made those gifts; • a signed statement of compliance with the foreign donations restrictions in new section 109J; and • if the referendum entity is also required to provide a return under section 109F, that return (this is set out in subparagraph 109E(4)(c)). 123. A Note is inserted under subsection 109E(2) to remind the reader that referendum expenditure for the purposes of subparagraph (a)(i) is the total amount of expenditure incurred during the referendum expenditure period in relation to all referendums held on the same voting day (as per subsection 3AAA(3)). This is to streamline return obligations. 124. New subsection 109E(3) outlines the kinds of gifts that a referendum entity needs to disclose in a referendum entity return. These are gifts that have a connection to referendum campaigning because either: • the referendum entity knows the person or entity who gave the gift intended it to be used for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter; or • the gift was accepted by the person or entity who is or becomes a referendum entity with the intention of using the gift for the purposes of incurring referendum expenditure, or for the dominant purpose of creating or communicating referendum matter. 125. Further, these gifts must have been made or received during the referendum expenditure period (as per 109E(2)(a)(ii)). 27

126. The limitation on the kinds of gifts to which the disclosure provisions apply recognises that persons and entities who qualify as referendum entities may operate principally for purposes unrelated to any given referendum and receive gifts for those principal purposes. It is intended to minimise any reporting burden on referendum entities while still providing transparency of donations that have a connection to referendum campaigning. 127. New subsection 109E(4) provides that a return must be given to the AEC before the end of 15 weeks after the voting day for the referendum and must be in the approved form. Further, if the referendum entity is also required to provide a return under new section 109F this also must be included in the referendum expenditure return, not provided as a separate return. This means there is no duplication of penalties relating to referendum entity returns. 128. New subsection 109E(5) provides that subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection 109E(1). This means that a referendum entity will only contravene subsection 109E(1) once by failing to meet the return obligations in that subsection by the 15 week deadline, rather than incurring a separate contravention in respect of each day after the deadline on which the referendum entity continues to fail to meet that requirement. This is consistent with the treatment of non-compliance under equivalent provisions of the Electoral Act. 129. New section 109F establishes a framework for the disclosure of details of more significant donations received by referendum entities for referendum campaigning as part of a referendum entity's return. 130. New subsection 109F(1) requires a referendum entity to provide additional detail as part of that return if they received a gift or gifts during the referendum expenditure period where either the amount of one of those gifts, or the total amount of all gifts received from at least one single person, was valued over the disclosure threshold. 131. A Note under subsection 109F(1) alerts the reader that a return under section 109F should be included in the return provided under section 109E. This clarifies that the requirements of new section 109F form part of the "referendum entity return". 132. New subsection 109F(2) outlines the kinds of gifts that a referendum entity must disclose under this return, where the amount of at least one of the those gifts, or total amount of all gifts received from at least one single person, was over than the disclosure threshold. 133. The application of the expenditure and donations disclosure obligations in 109E and 109F to the whole of the referendum expenditure period, regardless of the point at which the person or entity became a referendum entity, is similar to the timeframes covered by the candidate return obligations. These begin six months before the candidate announces or nominates their candidacy and end 30 days after polling day. As with candidate returns, the referendum expenditure period timeframe - beginning six months before the writ for a referendum is issued and 28

ending on the voting day for the referendum - is intended to provide transparency of referendum campaign financing in the lead up to a referendum, not just subsequent to a person or entity becoming a referendum entity. 134. These requirements put persons and entities engaging in the communication of referendum matter on notice that they will need to comply with return and foreign donor obligations in this Part should they spend above the disclosure threshold on referendum campaigning over the referendum expenditure period. 135. New subsection 109F(3) sets out the information that the referendum entity must include in the return. This is: • the amount of each individual gift which exceeded the disclosure threshold, and the total amount of the gifts made by each single person who made gifts which in total exceeded the disclosure threshold; and • the date or dates on which the gift or gifts were made; and • the name and address of the person who made the gift or gifts. 136. Where a gift is received from or on behalf of an unincorporated association (other than a registered industrial association within the meaning of Part XX of the Electoral Act), the name of the associate and the names and address of the executive committee members must also be included in the return required. Likewise, if the gift was from a trust, the name of the trust and the names and addresses of the trustees are required to be included in the return. 137. The requirement to disclose additional detail about donations above the threshold, including donor details, is consistent with requirements for candidates and third parties to disclose these details in returns under the Electoral Act. 138. New section 109G establishes a framework for returns by donors who make gifts to referendum entities valued over the disclosure threshold during the referendum expenditure period with the intention that the referendum entity will use that donation for referendum campaigning. 139. The section 109G return obligation only arises where the donor intends the gift to be used for referendum campaigning. This recognises that referendum campaigning may not be the primary activity of persons and entities that become "referendum entities", and that donors may give gifts for other purposes. It is noted that where the referendum entity received the gift intending to use it for referendum campaigning, the referendum entity must declare that gift in a return under new section 109F. This recognises that donors may provide a donation over the disclosure threshold for an untied purpose during the referendum expenditure period: where a referendum entity accepts that donation with the intention of using it for referendum campaigning, the referendum entity will disclose the donation in a return under section 109F. 140. New subsection 109G(1) provides that the section applies to donors who make a gift or gifts valued over the disclosure threshold to the same referendum entity where the donor intends their donation to be used for the dominant purpose of 29

incurring referendum expenditure or of creating or communicating referendum matter. 141. New subsection 109G(2) requires a donor to whom subsection 109G(1) applies to give to the Electoral Commission a return disclosing their donation(s) to referendum entities within 15 weeks after the voting day for the referendum, in the approved form and including the details required by subsection 109G(3). 142. Subsection 109G(2) imposes a civil penalty for failure to comply with the donor return requirement. This is a maximum of the higher of 60 penalty units, or three times the amount of the gifts not disclosed (if there is sufficient evidence for the court to determine that amount, or an estimate of that amount). This is consistent with penalties for non-compliance with equivalent returns obligations under the Electoral Act. 143. New subsection 109G(3) sets out the information that must be included in a donor return. This is: • the total value of the gift or gifts made in the referendum expenditure period by the donor to the referendum entity; • the name of the referendum entity to whom the gift or gifts were made; and • the date or dates on which the gifts were made. 144. A Note is inserted under subsection 109G(3) to alert readers that a return under section 109G must be published by the Electoral Commissioner on the Transparency Register. 145. New subsection 109G(4) provides that subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of subsection 109G(2). This means that a donor will only contravene 109G(2) once by failing to meet the return obligations in that subsection by the deadline, rather than incurring a separate contravention in respect of each day after the deadline on which the donor continues to fail to meet that requirement, consistent with equivalent requirements in the Electoral Act. Example - Referendum return The Local Progress Association (the Association) is an association of local residents and businesses that advocate for their local area. The Association decides to campaign in support of a proposed constitutional alteration. The Association seeks donations to fund its referendum campaign activities, and receives donations from ten citizens, who donated $500 each (a total of $5,000), on 10 September. The Quokka Party of Australia Inc. - NSW (Quokka Party), a registered political party, is also interested in supporting the Association's referendum campaigning. It donates $17,000 to the Association for this purpose on 12 September. 30

The Association decides it will design and distribute a flyer encouraging other voters in the local community to vote 'Yes' to the referendum proposal. The Association hires a graphic designer to design the flyer at a cost of $2,000 on 20 September. The Governor-General issues the writ for the referendum on 26 September. The referendum voting day is set for 29 October. As a result, the 'referendum expenditure period' will run from 26 March (six months before the issue of the writ) to 29 October (voting day). The Association orders printed copies of the flyer to carry out a letterbox drop of the local area at a total cost of $14,000 on 1 October. As a result, the Association has become a 'referendum entity' as it has incurred referendum expenditure during a referendum expenditure period that exceeds the disclosure threshold (this example uses the 2022-23 FY disclosure threshold of $15,200). The Association also takes out an advertisement in the local newspaper at a cost of $3,000 on 20 October (both these communications include appropriate authorisation particulars for the purposes of Part IX of the Referendum Act). The referendum voting day is held on 29 October. Total referendum expenditure incurred during the referendum expenditure period - 109E Following voting day, the Association totals the referendum expenditure it has spent over the referendum expenditure period (six months before the issue of the writ to voting day). This is: • $2,000 (graphic design services) • $14,000 (printing of flyers) • $3,000 (advertising) Total referendum expenditure incurred during the referendum expenditure period to disclose in the return: $19,000 The Association provides the AEC with a referendum return disclosing $19,000 referendum expenditure within 15 weeks after 29 October. Although the referendum campaign is a short-term activity and the Association has a wider purpose, the dominant purpose of these campaign-related expenses make this expenditure 'referendum expenditure'. Total donations received by during the referendum expenditure period - 109E The Association totals the donations it has received over the referendum expenditure period (six months before the issue of the writ to voting day) that have a connection to referendum campaigning because of either the intention of the donor or the Association. Total donations received during the referendum expenditure period to disclose in the return: $22,000 Total number of persons or entities making those donations: 11 Donations over the disclosure threshold received at any time and used during the referendum expenditure period - 109F 31

As the donation from the Quokka Party made during the referendum expenditure period is over the disclosure threshold, the Association's referendum return under 109F must disclose details of the donation. Total value of donations from donor: $17,000 Date donation made: 12 September Name of donor: Quokka Party of Australia Inc. - NSW Example - Donor return Returns relating to gifts to referendum entities - 109G As the Quokka Party made a gift to the Association during the referendum expenditure period valued over the disclosure threshold, for the purposes of referendum campaigning, the Quokka Party must give the AEC a donor return under section 109G within 15 weeks after the voting day for the referendum. Total value of donations given: $17,000 Name of referendum entity: Local Progress Association Date donation made: 12 September 146. Should a referendum voting day be held simultaneously with polling day for a general election, there will be no duplication of the requirement to report expenditure. This is because there can only be one "dominant purpose" of "referendum expenditure" and "electoral expenditure". Division 3--Requirements relating to foreign donor gifts 147. Division 3 of new Part VIIIA sets out requirements relating to foreign donor gifts to referendum entities. 148. New section 109H provides that the object of Division 3 is to secure and promote the actual and perceived integrity of the Australian referendum process by reducing the risk of foreign persons and entities exerting (or being perceived to exert) undue or improper influence in the outcomes of referendums. The provisions in Division 3 aim to achieve this object by restricting the receipt and use of gifts made by foreign persons or entities that do not have a legitimate connection to Australia. 149. New section 109J prohibits referendum entities from receiving gifts over $100 from foreign donors (defined in the Electoral Act) for the purposes of referendum campaigning during the referendum expenditure period. This does not limit the ability of a referendum entity to receive foreign gifts during the referendum expenditure period for purposes other than referendum campaigning. 150. New section 109J is similar to existing prohibitions on foreign donations to candidates for the purposes of electoral expenditure in the Electoral Act. These changes to limit the influence of foreign donations in Australian federal elections were made in 2018, following JSCEM's consideration of the issue of foreign 32

influence in its Second interim report on the inquiry into the conduct of the 2016 federal election: Foreign Donations. 151. New subsection 109J(1) creates an offence for a person or entity to receive a gift from a foreign donor during the referendum expenditure period where: • the person or entity is a referendum entity at any time during a referendum expenditure period; and • the relevant person knows that the donor is a foreign donor; and • the amount or value of the gift is at least $100; and • either the person or entity knows that the foreign donor intends the gift to be used for referendum campaigning, or the person or entity accepted the gift intending to use the gift for referendum campaigning; and • the person or entity has not taken "acceptable action" to divest itself of the gift (this is defined in paragraph 109J(5)). 152. Paragraph 109J(1)(f) provides the timeframe in which a referendum entity must take acceptable action. This is six weeks from the later of the day the gift was made by the foreign donor, the day the writ for the referendum was issued, or the day the person or entity exceeds the disclosure threshold during the referendum expenditure period. The acceptable action timeframe is structured in this way so as to allow a person or entity who becomes a referendum entity later in the referendum expenditure period sufficient opportunity to take acceptable action to divest themselves of any foreign donation as necessary. 153. New subsection 109J(2) provides that the gift recipient does not need to know that they will be a referendum entity during the referendum expenditure period at the time the gift was received. Further, that they do not need to know the dates of referendum expenditure period at the time the gift was received. These will be questions of fact. 154. Importantly the provision still requires an intent element for the offence to apply - that is the foreign donor's intent that the donation be used for referendum campaigning or the recipient's intent to use the foreign donation for referendum expenditure (see, for example, subsection 109J(1)(e)). 155. New subsection 109J(3) creates the equivalent offence for a foreign donor to make a gift during the referendum expenditure period where: • the gift is to a person or entity who is a referendum entity at any time during the referendum expenditure period; • the amount or value of the gift is at least $100; • either the foreign donor intends the gift to be used for referendum campaigning, or the foreign donor knows referendum entity accepted the gift intending to use the gift for referendum campaigning; and • the referendum entity has not taken "acceptable action" to divest itself of the gift in the required timeframe. 156. New subsection 109J(4) provides that a foreign donor making a gift does not need to know that the gift recipient will be a referendum entity at any time during 33

the referendum expenditure period. Further, they do not need to know the dates of referendum expenditure period at the time the gift was received. These will be questions of fact. 157. Subsection 109J(5) defines "acceptable action" for the purposes of gifts in subsections 109J(1) and (3) as any of the following actions: • an amount equal to the amount or value of the gift is transferred to the Commonwealth; • the gift is returned to the donor or the person who made the gift; or • an amount equal to the amount or value of the gift is transferred to the donor or the person who made the gift. 158. New subsection 109J(6) provides that it is an offence for a person or entity to contravene subsections 109J(1) or (3). Criminal and civil pecuniary penalties apply to contraventions relating to foreign donations, consistent with equivalent provisions in the Electoral Act. A referendum entity or foreign donor who contravenes subsection (1) or (3) and is convicted of a criminal offence will be subject to a maximum penalty of 100 penalty units under subsection (6). 159. Subsection 109J(7) provides that section 15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against subsection (6). 160. Subsection 109J(8) provides that a referendum entity or foreign donor who contravenes subsection (1) or (3) may also liable for a civil penalty the higher of a maximum of 200 penalty units or three times the value of the gift (if there is sufficient evidence for the court to determine that amount, or an estimate of that amount). 161. Similar to subsection 109J(7), subsection 109J(9) provides that the civil penalties apply whether or not the conduct constituting the contravention of that subsection, or a result of the conduct, occurs in Australia. 162. New subsection 109J(10) clarifies that a contravention is not a continuing offence or civil penalty under section 4K of the Crimes Act or section 93 of the Regulatory Powers Act. Example - Foreign donations Foreign donations restrictions - 109J The Local Progress Association (the Association) became a referendum entity on 1 October. The Governor-General issues the writ for the referendum on 26 September. The referendum voting day is set for 29 October. As a result, the 'referendum expenditure period' will run from 26 March (six months before the issue of the writ) to 29 October (voting day). 34

Section 109J requires the association to take acceptable to divest itself of any foreign donation received at any point during 26 March to 29 October for the purposes of referendum campaigning within the required timeframe. On 29 September, the Association receives a donation of $222 from International Progress Inc (International Progress). The Association contacts the International Progress to ask about the purpose of the donation. International Progress informs the Association the donation is to support its referendum campaign. As International Progress is an entity that is not incorporated in Australia, does not have its head office in Australia or undertakes its activities principally in Australia, it falls within the definition of "foreign donor" of section 287AA of the Electoral Act. As this donation was received during the referendum expenditure period, is over $100 and the Association knows the International Progress gave the donation to support its referendum campaigning, the Association must take acceptable action to divest itself of International Progress' donation within six weeks of the later of the day: 1. the gift is made (29 September) 2. that the writ for the referendum is issued (26 September) 3. the referendum entity exceeds the disclosure threshold during the referendum expenditure period (i.e. the day it becomes a referendum entity) (1 October). If the Association does not take acceptable action in relation to the gift received, both it and International Progress could be liable to a penalty or offence. Division 4--Referendum expenditure by foreign campaigners 163. Division 4 of new Part VIIIA sets out restrictions on referendum expenditure by foreign campaigners. This replicates existing restrictions for foreign campaigners incurring referendum expenditure or fundraising for that purpose in the Electoral Act, as inserted by Electoral Legislation Amendment (Foreign Influences) Act 2022. 164. New section 109K sets out the object of Division 4. This is to ensure, to the extent possible, that only Australians and those with a genuine, legitimate stake in the outcomes of the Australian referendum process are able to influence those outcomes; and to reduce the risk of foreign persons or entities influencing the results of Australian referendums through referendum expenditure. This Division aims to achieve these objects by limiting referendum expenditure and fundraising for referendum expenditure by foreign persons or entities that do not have a legitimate connection to Australia. This also protects the integrity of the restrictions on foreign donations to referendum entities set out in section 109J by preventing foreign campaigners from circumventing that section by funding or fundraising their own referendum campaign directly. 165. New subsection 109L(1) establishes restrictions on foreign campaigners, as defined the Electoral Act, incurring referendum expenditure. Specifically, the section prohibits foreign campaigners: • incurring of $1,000 or more of referendum expenditure by or with the authority of the foreign campaigner in a financial year; or 35

• fundraising of $1,000 or more for the purpose of referendum expenditure being incurred by or with the authority of the foreign campaigner in a financial year. 166. The $1,000 threshold ensures the provision is appropriately targeted at serious contraventions rather than inadvertent, low-level electoral expenditure. 167. New subsection 109L(1) also establishes a civil penalty for contravention of the subsection, which is a maximum of the higher of 200 penalty units or three times the amount of referendum expenditure incurred or fundraised in contravention of subsection 109L(1) (if there is sufficient evidence for the court to determine that amount, or an estimate of that amount). This is consistent with equivalent penalty provisions of the Electoral Act. 168. New subsection 109L(2) clarifies that the offence in subsection 109L(1) applies whether or not the conduct constituting the contravention of subsection (1) occurs in Australia, and whether or not a result of the conduct constituting the alleged contravention of subsection (1) occurs in Australia. Division 5--Other matters 169. Division 5 of new Part VIIIA sets out administrative matters related to Divisions 1-4 of this Part, including in relation to the Electoral Commissioner's investigatory powers. As with other powers and functions vested in the Electoral Commissioner under the Referendum Act, the Commissioner may, in writing, delegate these powers to any officer or other member of the staff of the Electoral Commission under section 138 of that Act. 170. New section 109M is an anti-avoidance provision in relation to new sections 109E, 109F, 109G, 109J and 109L. It mirrors the anti-avoidance provisions for foreign campaigners in the Electoral Act. 171. New section 109M supports the operation of the referendum financial disclosure return obligations (109E, 109F, and 109G), the prohibition of foreign donations during the referendum expenditure period (109J) and the prohibition on foreign campaigners incurring referendum expenditure or fundraising for that purpose (109L) by giving the Electoral Commissioner the power to issue a written notice to a person or entity where the Commissioner has reasonable grounds to conclude that person or entity is conducting a scheme for the purpose of avoiding those provisions. 172. New subsection 109M(1) sets out the circumstances in which the Electoral Commissioner may give a person or entity such a notice, and new subsection 109M(2) sets out what that notice must contain. 173. New subsection 109M(3) provides that, if a person or entity is given a notice under subsection 109M(1) and engages in conduct that contravenes the notice, the civil penalty is the maximum of the higher of 200 penalty units or three times that amount that was not prohibited as a result of the scheme or part of the scheme (if there is sufficient evidence for the court to determine that amount, or 36

an estimate of that amount). This is consistent with penalties for anti-avoidance offences under the Electoral Act. 174. New subsection 109M(4) clarifies that section 109M applies to a scheme whether or not the scheme is entered into or carried out outside Australia. 175. New section 109N sets a framework by which the Electoral Commission may obtain information and documents from persons relevant to assessing compliance with Part VIIIA. 176. New subsection 109N(1) provides that the section applies to a person if the Electoral Commissioner has reason to believe that the person has information or a document that is relevant to assessing compliance with this Part. 177. New subsection 109N(2) provides that the Electoral Commissioner may, by written notice, require the person to give to the Commissioner information or documents within the period and in the manner and form specified in the notice. 178. New subsection 109N(3) requires the Electoral Commissioner to have regard to the costs of complying with the notice that would be likely to be incurred by the person before the Electoral Commissioner issues that notice. New subsection 109N(4) clarifies this does not limit the matters to which the Electoral Commissioner may have regard. 179. New subsection 109N(5) provides that a person commits an offence if the person is given a notice under 109N(2) and the person fails to comply with the notice. The penalty for this offence is a maximum of imprisonment for six months or 10 penalty units, or both. 180. New subsection 109N(6) requires that a notice given to a person under this section must set out the effect of subsection (5) of this section and sections 137.1 and 137.2 of the Criminal Code, which relate to offences for providing false or misleading information or documents. 181. New subsections 109N(7)-(9) set out the processes for a person given a notice under new subsection 109N(2) to request that the Electoral Commission review the decision. They also set out the process for the Electoral Commissioner to review and affirm, vary or set aside the decision, to notify the relevant person of that outcome, and that a person is not taken to have refused or failed to comply with the notice while the review is in process. 182. New section 109P provides that the Electoral Commissioner may inspect a document produced under section 109N and may make and retain copies of such a document. New subsection 109Q(1) makes provision for the Electoral Commissioner to take and retain copies of these documents for as long as is necessary. 183. New subsections 109Q(2) and (4) deal with who is entitled to a copy of a document and the certification of copies of the document(s). 37

184. New subsection 109Q(3) provides that a certified copy must be received in courts and tribunals as evidence as if it were the original. 185. New section 109R applies to gifts received in contravention of section 109J, which restricts referendum entities from receiving gifts from foreign donors. This provides that the amount or value of the gift is payable by the gift recipient to the Commonwealth and may be recovered by the Commonwealth as a debt due to the Commonwealth by action in court. 186. New subsection 109S(1) provides that this section applies if a provision of this Part provides that a person contravening another provision of this Part (the conduct provision) commits an offence or is liable to a civil penalty. 187. New subsection 109S(2) clarifies that for this Part, a person is liable for civil or criminal penalties if the person contravenes the obligation set out in the clause. This clarifies that contravention of these obligations constitutes a criminal offence or gives rise to a civil penalty, as the case requires. 188. New subsection 109S(3) provides that for the purposes of applying Chapter 2 of the Criminal Code, which concerns the general principles of criminal responsibility, to the offences in this Part, the physical elements of the offence are set out in the relevant provision. 189. New subsection 109T(1) provides that actions in a court to recover an amount due to the Commonwealth under 109R (debts due to the Commonwealth) or under a civil penalty order made in relation to a contravention of a civil penalty provision in Part VIIIA, may be brought in the name of the Commonwealth by the Electoral Commissioner. New subsection 109T(2) provides that any process in the action required to be served on the Commonwealth may be served on the Electoral Commissioner. 190. New subsection 109T(3) clarifies that nothing in the section is intended to limit the operation of section 61 or 63 of the Judiciary Act 1903. 191. New section 109U sets out the record keeping provisions for those persons who are subject to civil penalty provisions in Part VIIIA. New subsections 109U(1) and (2) provide that records will be required to kept for five years following the end of a reporting period or relevant gifts being made. The period of five years is consistent with arrangements under similar Commonwealth schemes, and ensures that the relevant period extends beyond the typical timeframe for an election cycle. Failure to keep records is subject to a maximum civil penalty of 200 penalty units. 192. New subsections 109U(3) and (4) provide that the Electoral Commissioner may determine, by legislative instrument, any other record keeping requirements in relation to compliance with the Part more generally, and records must be kept in accordance with such a determination. 193. New section 109V deals with circumstances where a person is unable to obtain particulars required for the preparation of a return. New subsection 109V(1) 38

provides that if a person who is required to give a return under section 109E, 109F or 109G considers that it is impossible to complete the return because they are unable to obtain the particulars required, the person may prepare the return to the extent that it is possible, and provide this in writing to the Electoral Commission accompanied by a notice setting out those reasons, and providing details of a person who may reasonably know the missing information. 194. New subsection 109V(2) provides that a person who complies with subsection (1) is not, by reason of the omission of those particulars, to be taken to have given a return that is incomplete. 195. New subsection 109V(3) provides that where the Electoral Commission is notified that a person can supply particulars not included in a return under Division 2, they can serve a notice on that person requiring those particulars to be provided. New subsection 109V(4) provides that particulars provided under subsection 109V(3) are taken to be a return provided under section 109E, 109F or 109G. 196. New subsection 109V(5) provides that where a person is unable to obtain or given particulars requested by a notice under 109V(3) they can provide a further notice to the Electoral Commission a written notice setting out the details and reasons of why that person believes they are unable to comply, and providing details of a person who may reasonably know the missing information 197. New subsection 109V(6) provides that a person who complies with subsection 109V(5) is not, by reason of the omission of those particulars, to be taken to have given a return that is incomplete. 198. New section 109W clarifies that a failure of a person to comply with a provision of this Part in relation to a referendum does not invalidate that referendum. 199. New section 109X allows lodged returns to be amended to correct errors or omissions. This enhances the transparency of financial expenditure during referendums by allowing persons to update their lodged return to ensure that the return provides the correct information, noting that it is publicly available. 200. New sections 109Y and 109Z relate to reporting by the Electoral Commissioner on the operation of Part VIIIA following a referendum. 201. New subsection 109Y(1) provides that the Electoral Commissioner must, as soon as practicable after voting day for a referendum, prepare and give to the Minister a report of the operation of Part VIIIA in relation to that referendum. 202. New subsections 109Y(2) and (4) respectively provide that this report must include: • a list of the names of all persons or entities who, in the opinion of the Commission, are or may be required to give a return under section 109G (donor returns) in relation to that referendum; and 39

• particulars of the operation of section 109N since the preparation of the last report referred to in this section that included particulars of the operation of that section. This applies to any report referred to in section 109Y, subject to the exceptions in 109Z. 203. New subsection 109Y(3) clarifies that the Electoral Commission may prepare and give to the Minister any additional reports on the operation of Part VIIIA as the Electoral Commission thinks appropriate. 204. New subsection 109Y(5) provides that 34C of the Acts Interpretation Act, which relates to period reports the Parliament, does not apply in relation to a report under subsection (1). 205. New subsection 109Y(6) requires the Minister to cause a copy of a report given under subsections 109Y(1) or 109Y(3) to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report. 206. New subsection 109Y(7) clarifies report referred to in 109Y need not include particulars of a matter if those particulars have been included in an earlier report referred to in the section. 207. New section 109Z(1) deals with circumstances where a notice is given under section 109N (compliance with Part VIIIA) to a person whose name is included in a list in a report under subsection 109Y(2). Where this circumstance occurs, new section 109Z(2) provides that a report under section 109Y must not include particulars of any information given or contained in documents produced in compliance with the notice under section 109N, unless, in the opinion of the Electoral Commission, the information relates to a contravention or potential contravention of a civil penalty provision in the Referendum Act. 208. New section 109ZA provides that this Part does not apply to a person or entity to the extent that any constitutional doctrine of implied freedom of political communication would be infringed if this Part were to apply to the person or entity. 209. Items 4 and 5 update provisions that relate to the application of Regulatory Powers Act to Referendum Act provisions. 210. Item 4 repeals subsection 140AAA(1) and substitutes new subsections 140AAA(1) and (1A). 211. New subsection 140AAA(1) provides that each civil penalty provision of this Act is enforceable under Part 4 of the Regulatory Powers Act. A Note follows this new subsection to note that Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision. 212. New subsection 140AAA(1A) provides section 110C is enforceable under Part 6 of the Regulatory Powers Act. A Note follows this subsection to alert the reader 40

that Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions. 213. Item 5 amends subsection 140AAA(2) to omit "in relation to section 110C of this Act". Part 2--Consequential amendments Commonwealth Electoral Act 1918 214. Item 6 amends the table in subsection 120(2) of the Electoral Act to include a decision to give a notice under new section 109M of the Referendum Act, inserted by Item 5 of this Schedule, as reviewable decisions. This provides an avenue for review for any person or entity receiving a notice under this provision to seek internal review of a reviewable decision with the option to apply to the Administrative Appeals Tribunal. 215. Item 7 amends the table in subsection 320(1) of the Electoral Act to include the publications requirement for the AEC to publish returns provided to the AEC under the return obligations inserted by Item 5 of this Schedule on the Transparency Register within 24 weeks after voting day for the referendum. This is consistent with the timeframes for the publication of electoral returns by candidates and donors. Part 3-- Application provisions 216. Item 8 is an application provision. It provides that the return obligations in Division 2 of Part VIIIA, as inserted by Schedule 4, apply in relation to referendum expenditure periods for which the writs are issued on or after the commencement of this Schedule, whether the six month period referred to in that paragraph begins before, on or after that commencement. 217. Item 8 further provides that the foreign donor restriction applies to gifts made on or after the commencement of this item, that foreign campaigner restrictions apply in the financial year in which Schedule 4 commences, in relation to amounts incurred of fundraised after the commencement of the schedule, and that a notice provided under 109N applies in relation to the provision of information or documents regardless of whether the information or documents were obtained by the person before, on or after that commencement. Schedule 5--Designated electors 218. This Schedule replicates more recent updates to the Electoral Act with respect to the "designated electors" framework, inserted by Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Act 2021. 219. This will ensure there are consistent safeguards across federal election and referendum events against instances of multiple voting, in line with the 'one vote, one value' principle of Australia's democracy. 41

Commonwealth Electoral Act 1918 220. Part XVC of the Electoral Act specifies the circumstances in which the Electoral Commissioner may declare an elector to be a designated elector and associated review rights. 221. Items 1 and 2 expand the designated elector framework established in the Electoral Act to voting in referendums. Currently, the designated elector framework only applies to federal elections. 222. Item 1 inserts "or a referendum" after "in an election" in section 202AG, the simplified outline for Part XVC - Designated Electors. 223. Item 2 repeals subsection 202AH(1) and inserts new subsection 202AH(1). New subsection 202AH(1) provides that the Electoral Commissioner may declare that an elector is a designated elector if they reasonably suspect that an elector has voted more than once in an election and/or a referendum. Consistent with the existing "designated elector framework" as inserted by the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Act 2021, this declaration can be made whether or not the elector has been convicted of a multiple voting offence under subsection 339(1A) or (1C) of the Electoral Act or subsections 130(1A) or (1C) of the Referendum Act. 224. This provides the Electoral Commissioner with the mechanism to safeguard against multiple voting in future elections for electors who are reasonably suspected of having voted multiple times in an election or referendum, or both. A reasonable suspicion can be determined by any means available to the Electoral Commissioner. For example, this may include consideration of records of certified-lists, which contain multiple-marks recorded against an elector's name as having voted more than once in a single election. 225. Item 3 repeals subsection 202AH(3) and substitutes new subsection 202AH(3). This item clarifies the circumstances in which a declaration that an elector is a designated elector will cease to have effect. New paragraphs 202AH(3)(a)-(d) provide that a designated elector declaration will cease to have effect where all relevant conviction/s are quashed on appeal. Referendum (Machinery Provisions) Act 1984 226. Item 4 inserts the definition of "designated elector" in subsection 3(1) to have the same meaning as the Electoral Act. 227. Item 5 inserts new subsection 22(2B) to prohibit the inclusion of the address of a person who is on the Roll and is a designated elector on a certified list of voters. This maintains the privacy of a person's status as a designated elector and, utilising the equivalent processes for designated electors in the Electoral Act, ensures designated electors cast a declaration vote. 228. Item 6 inserts a Note at the end of section 46(1) which refers to new section 46AA which is inserted by Item 9 below. 42

229. Item 7 inserts new section 46AA after section 46. This new section provides that a designated elector may vote only by declaration vote in a referendum. This aligns with the voting process for designated electors for federal elections in the Electoral Act. 230. Item 7 also includes a Note that designated electors are able to cast declaration votes in accordance with the rules relating to postal voting, pre-poll declaration voting and provisional and absent voting. 231. By requiring designated electors to vote only by declaration vote, the referendum process has additional safeguards to prevent multiple voting, whilst also ensuring that electors declared as designated electors are not prevented from exercising their right to vote, including via postal and pre-poll. 232. Item 8 inserts new subsection 62(2A). New subsection 62(2A) provides that the Electoral Commissioner cannot include any particular details about a postal vote applicant's status as a designated elector on the list of applications for postal votes for a Division. 233. Item 9 inserts Note 1 after subsection 72(2). This note provides that a designated elector is not entitled to vote by pre-poll ordinary vote and is consequential to Item 11 below. 234. Item 10 is a technical amendment consequential to Item 11 above and amends the Note in subsection 72(2) to Note 2. 235. Item 11 inserts new paragraph 73CG(2)(ea). New paragraph 73CG(2)(ea) provides that a designated elector is not entitled to vote by pre-poll ordinary vote. This is consistent with the designated elector framework in the Electoral Act as a designated elector may only vote by declaration vote, which may include a pre- poll declaration vote. 236. Item 12 inserts a Note after subsection 130(1A) and before the penalty. This note provides that the Electoral Commissioner may declare that a person convicted of an offence against subsection 130(1A) is a designated elector. This subsection is an offence provision for if a person votes more than once in the same referendum. 237. Item 13 inserts a Note after subsection 130(1C) and before the penalty. This note provides that the Electoral Commissioner may declare that a person convicted of an offence against subsection 130(1C) is a designated elector. This subsection is an offence provision for if a person intentionally votes more than once in the same referendum. 238. Item 14 is an application provision. It provides that new subsection 202AH(1) applies in relation to a reasonable suspicion that a person has voted more than once in an election or referendum, whether or not the election or referendum occurred before or after the commencement of this item. 43

239. Item 15 is a saving provision. It provides that if a declaration by the Electoral Commissioner for the purposes of subsection 202AH(1) of the Electoral Act was in force immediately before the commencement of Item 2, this declaration is taken to be a declaration for the purposes of new subsection 202AH(1). Schedule 6--Modification of electoral procedures during emergencies 240. States of emergency, including global pandemics, bushfires and floods, have the potential to significantly disrupt the conduct of elections and referendums. The amendments in this Schedule will align the Referendum Act with the amendments made by the Electoral Legislation Amendment (Contingency Measures) Act 2021 to uplift the existing power to adjourn or suspend polling at a polling place or pre-poll voting office and also grant the Electoral Commissioner the power to make certain temporary modifications to Referendum Act in the event of an emergency declared under Commonwealth law. 241. These amendments extend the recommendations of the JSCEM's 2021 Inquiry on the future conduct of elections operating during times of emergency situations to the referendum context. Referendum (Machinery Provisions) Act 1984 242. Items 1 to 7 amend the Referendum Act to align the reserve power with the Electoral Act to temporarily suspend or adjourn polling under defined emergency circumstances with the decision-making authority of the Electoral Commissioner, reflecting the significance of the decision to adjourn or suspend polling as a measure of last resort. 243. Item 1 omits the words "presiding officer" from subsection 41A(1) wherever occurring and substitutes with "Electoral Commissioner". This amendment uplifts the power to temporarily suspend polling in a referendum from the presiding officer to the Electoral Commissioner. This uplift of powers is consistent with section 240A of the Electoral Act. 244. Item 2 repeals paragraph 41A(2)(b) and substitutes new paragraph 41A(2)(b). This amendment ensures that if a referendum is held on the same day as an election, then the power to temporarily suspend polling for both events is the with Electoral Commissioner. 245. Item 3 amends subsection 41A(2) to omit the words "presiding officer must temporarily" and substitute with "Electoral Commissioner must temporarily". This provides that the Electoral Commissioner must temporarily suspend voting for a referendum at a polling both if they have also suspended polling at the polling booth for an election being held on the same day under section 240A of the Electoral Act. 246. Item 4 amends subsection 42(1) which deals with the adjournment of voting in a referendum under defined emergency circumstances. This amendment uplifts the existing power to adjourn voting at a polling booth from day to day from the 44

presiding officer of the polling booth to the Electoral Commissioner. This is consistent with section 241 of the Electoral Act. 247. Item 5 amends subsection 42(2) to uplift the existing power to adjourn voting at a polling booth should a polling booth at a polling place not be opened on the voting day at a referendum from the presiding officer of the polling booth to the Electoral Commissioner. The adjournment cannot exceed a period of 21 days. The Electoral Commissioner is to give public notice of the adjournment. This uplift in power is consistent with section 242 of the Electoral Act. 248. Item 6 amends subsection 43(b) to omit the words "presiding officer at the polling booth" and substitute with "Electoral Commissioner" to reflect the uplift of the power to adjourn polling to the Electoral Commissioner. 249. Item 7 amends section 43 to omit the words "the presiding officer shall" and substitute "the Electoral Commissioner must". This is consequential to Item 6 above to require the Electoral Commissioner to adjourn referendum voting at a polling booth if at the same polling booth at the same polling day, the Electoral Commissioner has adjourned polling at an election. 250. Item 8 inserts after the word "Act" in section 138 "other than the powers and functions conferred by sections 41A, 42, 43 and 144A,". This has the effect of preventing the powers to temporarily suspend or adjourn polling at a polling place and the power to modify the operation of the Referendum Act in certain circumstances in relation to emergency area voting from being delegated by the Electoral Commissioner. This is consistent with the powers of the Electoral Commissioner in the Electoral Act. 251. Item 9 inserts new section 144A after section 144, "Modifications by legislative instrument in the event of an emergency". New section 144A will allow the Electoral Commissioner to make modifications to the operation of the Referendum Act through a legislative instrument in certain circumstances. This aligns with section 396 of the Electoral Act, as inserted by the Electoral Legislation Amendment (Contingency Measures) Act 2021. 252. New subsection 144A(1) will provide the Electoral Commissioner with the power to modify certain aspects of the Referendum Act in circumstances where: • an emergency declaration (however described) has been issued under a Commonwealth law; and • the Electoral Commissioner is satisfied on reasonable grounds that the emergency to which the emergency declaration relates, would interfere with the due conduct of a referendum in a geographical area to which the declaration applies. 253. New subsection 144A(2) provides that if the Electoral Commissioner is satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of the referendum in the emergency area, then they may, by legislative instrument, expand the grounds on which a person in the emergency area may apply for a postal vote or a pre-poll vote. 45

254. To ensure that the voters, officers, and scrutineers can safely participate in an election, new subsection 144A(3) enables the Electoral Commissioner to allow persons to travel (both to and from), and be present for activities in an emergency area, that are conducted under the Referendum Act if it is necessary or conducive for the due conduct of the referendum in the emergency area. 255. New subsection 144A(3) also permits the Electoral Commissioner to allow persons to travel and conduct the referendum activities defined in new subsection 144A(4) within 100 metres of the entrance to a polling booth or pre-poll voting office in an emergency area. These activities are: • canvassing for votes in a referendum; • inducing an elector to vote in a particular way at a referendum; • soliciting the vote of an elector in a referendum; and • exhibiting a notice or sign (other than an official notice or sign) relating to a referendum. 256. New subsection 144A(5) provides that a legislative instrument made under new subsection 144A(2) or (3) has effect according to its terms (despite other provisions in the Referendum Act). The terms of the legislative instrument may, for example, include the specific geographical areas where the modifications apply, the nature of the relevant modifications, and the time period for which the instrument is to have effect. 257. New subsection 144A(6) provides that before making a legislative instrument under new subsection 144A(2) or (3), the Electoral Commissioner must notify the Prime Minister and the Leader of the Opposition in writing, including the reasons why any modifications are considered necessary, and how the modifications will be limited to the emergency area, and the period for which the emergency declaration is in force. This provides a high level of accountability and transparency that modifications are only made when necessary. 258. New subsection 144A(7) requires the Electoral Commissioner to publish the instrument on the AEC's website, as well as any other way the Electoral Commissioner considers appropriate. The modification instrument must also be published on the Federal Register of Legislation. This ensures that there is a publicly accessible source of reliable information available to communicate the particulars of any legislative instrument. 259. New subsections 144A(8) and 144A(9) define Commonwealth emergency laws for the purposes of section 144A as: • the Biosecurity Act 2015; • the National Emergency Declaration Act 2020; • the National Health Act 1953; • the National Health Security Act 2007; and • any other Commonwealth law specified by the Minister by legislative instrument. 46

260. The legislative instrument made by the Minister would be subject to disallowance in accordance with the Legislation Act 2003, and may be disallowed by either House within a certain time after the instrument is tabled in the Parliament. Additionally, any legislative instrument made by the Minister, unless exempt from Parliamentary oversight, would be subject to scrutiny by the Senate Standing Committee for the Scrutiny of Delegated Legislation. The use of delegated legislation in this instance ensures a timely response to unforeseen emergency situations so that Australians can exercise their franchise. 261. New subsection 144A(10) provides that any legislative instrument made by the Electoral Commissioner under subsection 144A(2) or (3) ceases to have effect when the emergency declaration is no longer in force or when the writs for the referendum are returned, whichever occurs first. 262. Amendments made by Item 9 provide the Electoral Commissioner with equivalent powers in the context of a referendum to those currently held by the Electoral Commissioner under the Electoral Act in the context of federal elections. They will ensure that core referendum activities can legally continue in a safe manner and support the resilience of Australia's democracy. 263. Item 10 is an application provision. It provides that amendments made by Schedule 6 apply in relation to referendums, the writs for which are issued on or after the commencement of the Schedule. Schedule 7--Modernisation and terminology 264. This Schedule amends the Referendum Act to modernise and clarify certain language used throughout the Act, and align it with the Electoral Act. 265. Item 1 omits the definition of "approved form" in subsection 3(1) and substitutes a definition that enables AEC approved forms under the Referendum Act, such as PVAs, to be electronic. This replicates modernisation amendments to the Electoral Act made by the Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019. 266. Items 2 to 5, 8 to 11, 16 and 21 amend the Referendum Act so that it consistently uses "am" and "pm" when referring to time. This modernises the language, consistent with current references to time in the Acts Interpretation Act 1901. 267. Item 6 amends subsection 41(4), to omit the phrase "shall be sealed up in a parcel which shall be", and substitute it with the phrase "must be bundled up and". Item 7 repeals and substitutes subsection 41AA(3) to change "sealed up" to "bundled up". These items replicate ballot paper handling modernisation and efficiency amendments made to the Electoral Act by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. 268. Item 12 corrects a typographical error in subsection 58(1) by removing a comma. 269. Item 13 is an amendment consequential to Item 14. 47

270. Item 14 repeals paragraph 73E(b) to remove the requirement for a pre-poll vote certificate to carry a distinguishing number that is the same number as that allocated to the record of the application for the pre-poll vote certificate. This is a modernisation measure, as there is no specified use of this number in AEC processes. The equivalent provision in the Electoral Act was repealed by the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021. 271. Item 15 inserts the word "lawful" in paragraph 73J(a) for consistency with section 135 of the Referendum Act and section 348 of the Electoral Act. 272. Items 17 to 20, 22 and 23 make technical terminology amendments to ensure references to the admission of formal ballot papers are consistent across the Electoral Act and Referendum Act. 273. Item 24 replaces the references "political campaigners" in section 110A of the Referendum Act with "significant third parties", to reflect equivalent terminology updates made in the Electoral Act by the Electoral Legislation Amendment (Political Campaigners) Act 2021. 274. Item 25 repeals the penalty in section 120 and substitutes it with "Imprisonment for 3 years or 100 penalty units, or both". This aligns the penalty with that of the equivalent offence in the Electoral Act, and with the Criminal Code concerning interference with political rights and duties. 275. Item 25 also inserts a Note to clarify that examples of conduct that may be an offence under section 120 include violence, obscene abuse, discriminatory abuse, property damage, harassment, and stalking, consistent with the Electoral Act. 276. Item 26 amends a terminology discrepancy in subsection 127(1) of the Referendum Act, to clarify that the subsection applies to "referendum papers" as defined at subsection 127(6). 277. Item 27 is a saving provision consequential to Item 1, enabling the AEC to continue to use forms that were approved under the Referendum Act prior to commencement of Item 1. 278. Item 28 is an application provision. It provides that subsections 41(4), 41AA(3) and section 73E as amended by Schedule 7 apply in relation to referendums, the writs for which are issued on or after the commencement of the Schedule. It also provides that section 120 as amended by Schedule 7 applies in relation to offences committed on or after the commencement of the Schedule. Schedule 8--Amendment of references to "ballot-paper" and "ballot-papers" 279. Items 1 to 147 amend the Referendum Act to substitute all references to "ballot- paper" and "ballot-papers" with "ballot paper" and "ballot papers". This technical amendment replicates amendments made to the Electoral Act by the 48

Statute Law Revision Act 2010, to ensure consistency in how ballot papers are referenced, and is consistent with the Macquarie Dictionary of Australia's current definition of the terms. 49

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