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CONTENTS
Purpose
Background
Main Provisions
Endnotes
Date Introduced: 3 December 1997
House: House of Representatives
Portfolio: Finance and Administration
Commencement: On the 28th day after Royal Assent unless otherwise stated in the Schedules.
To amend the Commonwealth Electoral Act 1918 so as to implement some of the recommendations from each of the three Joint Standing Committee on Electoral Matters reports.
The Commonwealth Electoral Act 1918 ('the Principal Act') has received a great deal of scrutiny and amendment over the past two decades. It has been the subject of a number of reviews during that time, primarily by the Joint Standing Committee on Electoral Matters. The Bill seeks to amend the Principal Act to implement some of the recommendations. The Bill also makes technical and consequential amendments to the Referendum (Machinery Provisions) Act 1984.
The former Australian Electoral Office was replaced by the independent Australian Electoral Commission (AEC) in 1984. The AEC is 'responsible for providing the Australian people with an independent electoral service which meets their needs and which encourages them to understand and participate in the electoral process.'(1)
The Joint Standing Committee on Electoral Matters (JSCEM) tabled a report in November 1994 on the 1993 election. The report Report of Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto made 73 recommendations.
The Joint Standing Committee on Electoral Matters tabled a report on 19 December 1995 entitled Electoral Redistributions with 24 recommendations. A redistribution is a 'redrawing of electoral boundaries to ensure that, as nearly as practicable, each State and Territory gains representation in the House of Representatives in proportion to the State or Territory's population, and that there are the same number of electors in each division for a given State or Territory.'(2)
A further report ('the 1997 Report') was tabled in June 1997 by the same Committee entitled the Report of the Inquiry into all Aspects of the Conduct of the 1996 Federal Election and Matters Related Thereto. This later report made 73 recommendations.
The Bill picks up some of the recommendations from each of the reports but essentially concentrates on the earlier two reports. The Second Reading Speech indicates that the Government is still considering the recommendations in the 1997 report.
Item 7 will amend subsection 46(1) of the Principal Act so that the determination of the State and Territory representation entitlements is done after twelve months from the first meeting of the House of Representatives rather than after 9 months. The effect of the change will be to have an extra quarters' statistics or an extra three months of data after the election available for use (ie four quarters rather than three) in calculating the representation entitlements. This was the first recommendation made in the JSCEM Electoral Redistributions report of 19 December 1995.
Items 17 & 18 together expand the range of enrolled electors that an electorate may have from the 'average divisional enrolment' for that State or Territory. Currently the range is from 98% to 102% and the Bill will increase this to the range 96.5% to 103.5%. This was the 'most contentious issue' at the JSCEM inquiry(3). The increased range will enable the redistribution committees to more properly consider the 'qualitative criteria' such as the physical features of the electorate and the means of communication or travel within the electorate and the 'community of interests' within the electorate and adjust the electorate accordingly. The AEC cautioned that the expression 'community of interests' was an elusive criterion. The Government Response acknowledged this but reasoned that the JSCEM's assessment that the 'numerical criteria do not allow due consideration to be given to the qualitative factors' was right and therefore there should be a relaxation of the rules to 'allow a realistic degree of flexibility'. For example, some boundaries cut through a street or through a suburb leaving the impression that the strict application of the 'mathematical formula' was much more important than other factors. The 2% range did not, according to the proponents of change, allow any flexibility and was all about number-crunching.
The majority judgment in McGinty & Ors v State of Western Australia (1996) 186 CLR 140 makes it clear that there is no constitutional requirement for absolutely equal electorate size. Whilst the expectation might be that 'one vote means one value', the High Court's majority judgment makes it clear that this is not constitutionally guaranteed. Clearly the High Court would find in some cases that a disparity in the number of electors between electorates could be so great as to offend the principle in the Constitution that representatives are elected directly by the people.
Item 38 allows the Electoral Commission to provide, in electronic form, extracts of the electoral roll (including the sex of electors) to individuals or organisations conducting medical research or running health screening programs, Senators and Members and to registered political parties. Currently such information can only be provided to certain prescribed authorities (generally specified Government Departments or Commonwealth Authorities).
Recommendation 52 of the 1997 Report advocated that section 91 be amended so that the age, salutation details and gender of persons on the electoral roll could be provided to Senators, Members and registered political parties. The recommendation also suggested that the same details be made available in some designated instances for research purposes.
Whilst there are undoubtedly benefits to the community flowing from medical research and there may be benefits to individuals contacted by health screening programs, there is also an issue of privacy. The Privacy Act 1988 contains a number of information privacy principles which include the basic rules that essentially personal information should only be collected for a purpose that is lawful and that the person giving the information should be aware of why the personal information is required and how it will be used. In this context, people giving their name, sex, address and birthdate to the AEC would not have been aware, or have anticipated, that the information could be used, for example, by people running health screening programs. The Privacy Act 1988 does, however, provide for the issuing of guidelines by the National Health and Medical Research Council (see section 95 of the Privacy Act 1988) and acts done by medical researchers that comply with the properly issued and gazetted guidelines are deemed not to breach the Privacy Act 1988.
The Privacy Act 1988 applies only to government-held information and does not apply to private companies or individuals. As a result, one outcome of disseminating this information to non-government people or organisations is that the information is no longer protected by the Privacy Act 1988. Proposed section 91A(1) will make it an offence to use this information for any purpose other than that for which it was permitted, however the penalty is merely 10 penalty units. One penalty unit is currently $110.00 under section 4AA(1) of the Crimes Act 1914. Therefore, the maximum penalty for the misuse of the information is $1 100.00.
Proposed section 94A allows people who would ordinarily be eligible to be on the electoral roll to enrol whilst they are residing overseas for no longer than 6 years for career or employment reasons (either for themselves or their spouse).
Items 90 and 91 increase the nomination fees for persons running for either the House of Representatives or the Senate. The fees will increase from $500 to $700 for a Senate nomination and from $250 to $350 for a nomination for the House of Representatives.
Item 128 introduces proposed section 273A which will allow the computerised counting of Senate votes for the first time. The precautions already in the Principal Act in relation to inspecting the ballot boxes are all preserved and the new section will allow informal votes to be rejected etc and then the first preferences electronically recorded and scrutinised in accordance with existing section 273. This amendment should greatly facilitate the counting of votes and provide a faster senate election result without compromising the accuracy.
Item 135 inserts a new section, proposed section 274(7AA). This will allow, after a count of first preferences, candidates rated third or below to be excluded. The Explanatory Memorandum explains this as allowing 'for the declaration of the poll in a House of Representatives election on the result of the two candidate preferred count where on the basis of first preference votes, the exclusion of all but two candidates is inevitable.'(4)
Item 150 repeals subsection 329(3) of the Principal Act. Subsection 329(3) is the provision that gained notoriety in the lead-up to the 1996 election campaign when activist Albert Langer was jailed for contempt of court after being ordered not to breach section 329 by advocating a vote other than that provided for in section 240 of the Principal Act (ie the full preferential system). Langer advocated a formal vote where no further preferences could be distributed after the first two preferences were tallied(5). Despite the High Court upholding the validity of section 329(6) there was strong criticism of the provision and of the jailing of Langer(7). Part of recommendation 13 of the 1997 report of the Joint Standing Committee on Electoral Matters advocated the removal of subsection 329(3).
The result of this amendment will be that optional preferential voting will still be valid in Australia and people will now be able to actively lobby others to vote in this fashion. One outcome of this might be that protest votes might work against the major parties and in the favour of the minor parties and independents. Of course, such votes have been possible in the past, but now it will be lawful to advocate and encourage their use.
Item 158 implements in part recommendation 56 of the Joint Standing Committee on Electoral Matters' report on the 1993 election. It will relax the current rules regarding letters to the editors of newspapers. Currently, all letters regarding electoral matters are required to have the author's name and address also printed. This item will amend the current rules to allow just the author's name and their suburb or locality to be printed.
Item 161 will implement recommendation 8 of the Joint Standing Committee on Electoral Matters' report on the 1996 election. Item 161 will amend subsection 339(1) to make it a strict liability offence for a person to vote more than once in the same election. The maximum penalty will be 10 penalty units. Currently, there is a requirement for the prosecution to prove that people who are charged with having voted more than once did so "wilfully".
Susan Downing
6 March 1998
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.
ISSN 1328-8091
© Commonwealth of Australia 1997
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Published by the Department of the Parliamentary Library, 1997.