EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 350

 

Commonwealth Electoral Act 1918

Referendum (Machinery Provisions) Act 1984

 

Electoral and Referendum Amendment Regulations 2006 (No. 1)

 

Section 395 of the Commonwealth Electoral Act 1918 (the Electoral Act) provides, in part, that the Governor-General may make regulations, not inconsistent with that Act, prescribing matters which by that Act are required or permitted to be prescribed, or necessary or convenient to be prescribed for giving effect to that Act.

 

Section 144 of the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) provides, in part, that the Governor-General may make regulations, not inconsistent with that Act, prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to that Act.

 

The Electoral and Referendum Amendment Regulations 2006 (No. 1) (the Regulations) have two purposes. The first is to amend the Electoral and Referendum Regulations 1940 to prescribe the evidence of identity that must be provided to the Australian Electoral Commission (AEC) when making an application for enrolment. The second is to prescribe the evidence of identity that must be provided to AEC officers when casting a provisional vote at an election or referendum.

 

Section 98AA of the Electoral Act provides that, if regulations are made in relation to identification for enrolment, the regulations must require the applicant for enrolment to:

(a) provide documentary evidence of his or her name by providing his or her driver’s licence number; or

(b) if the applicant does not possess a driver’s licence—show to an elector in a prescribed class of electors a prescribed kind of document that identifies the applicant; or

(c) otherwise—have the application countersigned by two electors who:

(i) can confirm the applicant’s name; and

(ii) have known the applicant for at least one month.

 

Section 98AA also provides that such regulations may impose additional requirements in relation to identification for enrolment.

 

Reflecting section 98AA of the Electoral Act, the proof of identity scheme scheduled by the Regulations provides for three different categories (or tiers) of proof of identity. Under tier 1, people are required to provide their driver’s licence number. If people do not have a driver’s licence, then they are required to show a prescribed document to an elector in a prescribed class (tier 2). If they do not have a driver’s licence or show a prescribed document to an elector in a prescribed class, they are required to have their application countersigned by two electors who have known the applicant for at least one month and who can confirm the applicant’s name (tier 3).

 

The Regulations provide for the tiers of proof of identity, prescribe the classes of electors who may attest the prescribed documents, and prescribe such documents.

 

The Regulations specify:

·                     who must provide proof of identity in applications for enrolment;

·                     how they are to satisfy proof of identity requirements;

·                     the documents that are to be provided for proof of identity; and

·                     the classes of electors who may attest such documents.

 

The Regulations also prescribe the evidence of identity that must be provided to AEC officers when a person casts a provisional vote at an election or referendum. Subsection 235(1B) of the Electoral Act and subsection 37(1B) of the Referendum Act provide that a person may cast a provisional vote if the person provides evidence of the person’s identity required by the regulations either at the time of voting or by the first Friday following polling day. A provisional vote is cast in situations where, for example, an elector’s name cannot be found on the certified list of voters.

 

Subsection 235(9) of the Electoral Act and subsection 37(9) of the Referendum Act provide that, if regulations are made, the regulations must require the person claiming a provisional vote to show to an AEC officer the person’s driver’s licence or a prescribed kind of document that identifies the person. The Regulations specify the document that must be shown as an alternative to a driver’s licence.

 

Subsection 235(10) of the Electoral Act and subsection 37(10) of the Referendum Act also provide that such regulations may impose additional requirements in relation to identification for provisional voting.

 

Details of the Regulations are set out in the Attachment.

 

The Regulations commence on 16 April 2007.

 

The States, Territories and the Federal Privacy Commissioner have been consulted on the operation of these Regulations.

 

Attachment

 

Details of the proposed Electoral and Referendum Amendment Regulations 2006 (No. 1)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Electoral and Referendum Amendment Regulations 2006 (No. 1).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 16 April 2007.

 

Regulation 3 – Amendment of Electoral and Referendum Regulations 1940

 

This regulation provides that the Electoral and Referendum Regulations 1940 (the Principal Regulations) are amended as set out in Schedule 1 to the Regulations.

 

Schedule 1 – Amendments

 

Item [1] – Part II, Division 1, after regulation 11

 

This item inserts new regulation 12 into the Principal Regulations to provide three different tiers of proof of identity for applications for electoral enrolment. Under subregulation 1, applicants are required to provide their driver’s licence number. If an applicant does not have a driver’s licence then, under subregulations 2 and 3, they are required to show a document prescribed in Schedules 3 and 4 respectively, to an elector in a class prescribed in Schedule 2 (see item [3] below). If an applicant does not have a driver’s licence or show a prescribed document to an elector in a prescribed class, under subregulation 4, they are required to have their application countersigned by two electors who have known the applicant for at least one month and who can confirm the applicant’s name.

 

Subregulation 3 of regulation 12 specifically relates to people who have made an application for provisional enrolment whilst awaiting a grant of Australian citizenship. New regulation 13, also inserted by item [1] into the Principal Regulations, also relates to such people. Regulation 13 prescribes the classes of electors who may be shown, and attest to, an original or copy of an applicant’s citizenship notification. While subregulation 3 provides for the classes of electors who can attest to a copy of the applicant’s citizenship certificate, subregulation 4 provides that subregulation 3 will cease to have effect upon the commencement of section 3 of the Australian Citizenship Act 2006. This is due to changes in documentation provided to new Australian citizens.

 

Item [2] – Part III, Division 1, after regulation 39A

 

This item inserts new regulations 39B and 39C into the Principal Regulations.

 

Regulation 39B requires people who cast provisional votes in an election or referendum to show their driver’s licence or a document listed in Schedule 3 to an electoral officer at the time the vote is cast. If the licence or Schedule 3 document is not shown at the time of voting, regulation 39B provides that an original or attested copy of the licence or document may be shown to an AEC officer by the first Friday following polling day. The classes of electors who may attest a copy are those listed in Schedule 2. If proof of identity is not provided in the required time, the vote is not valid.

 

Regulation 39C prescribes the classes of electors who are able to attest a certificate of Australian citizenship for provisionally enrolled electors who have cast a declaration vote as those listed in Schedule 2. This regulation ceases to have effect upon the commencement of section 3 of the Australian Citizenship Act 2006.

 

Item [3] – After Schedule 1

 

This item provides for three new schedules to the Principal Regulations.

 

Schedule 2 lists the classes of electors who may attest certain proof of identity documents.

 

Schedule 3 lists documents that may be used to identify an applicant for enrolment or a person claiming a provisional vote at an election or referendum.

 

Schedule 4 lists documents that may be used for identification purposes by persons who have provisionally enrolled pending the granting of Australian citizenship.