Commonwealth Numbered Regulations - Explanatory Statements

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TORRES STRAIT REGIONAL AUTHORITY (ELECTION OF OFFICEHOLDERS) REGULATIONS 2019 (F2019L00484)

EXPLANATORY STATEMENT

Issued by the Authority of the Minister for Indigenous Affairs

Aboriginal and Torres Strait Islander Act 2005

  Torres Strait Regional Authority (Election of Officeholders) Regulations 2019

Overview 

1.      Section 143L of the Aboriginal and Torres Strait Islander Act 2005 (Act) empowers the Torres Strait Regional Authority (TSRA) to elect from among its members a Chairperson and a Deputy Chairperson, whether that election is at the first meeting of the TSRA after TSRA elections or whether there is a vacancy in the office of Chairperson or Deputy Chairperson. Section 143L further provides that such elections must be conducted in accordance with the regulations. Additionally, section 144D empowers the TSRA to also elect an alternate Deputy Chairperson.

2.      The Torres Strait Regional Authority (Election of Officeholders) Regulations 2019 (Regulations) cover all matters relating to the election of officeholders, including nomination of candidates, conduct of the election, scrutiny of ballot papers, declaration of the poll and recording the result of the election. Without the Regulations, the TSRA would not have a process for electing members to the position of Chairperson, Deputy Chairperson or alternate Deputy Chairperson.

3.      The Regulations mirror those in the Torres Strait Regional Authority (Election of Officeholders) Regulations 1997 which were due to sunset on 1 April 2019.

Background

4.      Section 142 of the Act establishes the TSRA as a corporate Commonwealth entity. Under section 142A, a function of the TSRA is to deliver programmes for Torres Strait Islanders and Aboriginal persons living in the Torres Strait area.

5.      Under section 142R of the Act, the TSRA consists of the eligible number of members elected in accordance with Division 5 of Part 3A. The Minister has not otherwise determined how the TSRA is to be constituted under section 142S of the Act.

6.      Under section 142T of the Act, the Australian Electoral Commission conducts TSRA elections to determine the members of the TSRA, which under section 142Y, must be held every four years.  

7.      Under section 143L, the TSRA must, at its first meeting after it is elected, elect from among its members by secret ballot a Chairperson and a Deputy Chairperson. Furthermore under section 143L, at any other meeting of the TSRA, the TSRA must elect a new Chairperson or Deputy Chairperson, if there are vacancies in those offices. All elections under section 143L must be conducted in accordance with the Regulations.

8.      Under section 144D, the TSRA may also elect an alternate Deputy Chairperson.

9.       Further information on the Regulations is provided in Attachment A and the Statement of Compatibility with Human Rights is provided in Attachment B.

Regulatory Impact Statement

10.  The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required for the Regulations as they remake the content of the previous instrument with minor updates to formatting and replacing the reference to the TSRA General Manager to read TSRA Chief Executive Officer.

Commencement

11.  The Regulations commence on the day after they are registered on the Federal Register of Legislation.

Consultation

12.  The TSRA and the Australian Electoral Commission have been consulted on the Regulations and agree with them.

ATTACHMENT A

Explanation of Regulations

Part 1 - Preliminary

Section 1 - Name

1.      The name of the Regulations is the Torres Strait Regional Authority (Election of Officeholders) Regulations 2019. 

Section 2 - Commencement

2.      The Regulations commence on the day after being registered on the Federal Register of Legislation.

Section 3 - Authority

3.      The Regulations are made under the Aboriginal and Torres Strait Islander Act 2005.

Section 4 - Definitions

4.      Section 4 contains definitions of words used throughout the Regulations.

Section 5 - TSRA Chief Executive Officer

5.      Section 5 requires that the TSRA Chief Executive Officer must attend the first meeting of the TSRA after it is elected. If the TSRA Chief Executive Officer is unable to attend they must nominate a member of the staff of the TSRA to attend in the TSRA Chief Executive Officer's place. 

Part 2 - Election of officeholders at the first meeting of the TSRA after its election

Division 1 - Nominations

Section 6 - Calling for nominations

6.      Section 6 obliges the TSRA to give the Australian Electoral Commission the names and known postal address of each member of the TSRA within 7 days after the declaration of the result of a TSRA election. The section also obliges a returning officer to send to each member of the TSRA a list of the names of the members of the TSRA and an approved nomination form for a candidate for each relevant office at least 7 days before the first meeting of the TSRA. 

Section 7 - Making nominations

7.      Section 7 deals with making nominations for the office of Chairperson, Deputy Chairperson and alternate Deputy Chairperson. It provides that nominations must be in the approved form and sets out the information to be included in the approved form. It also lays down the procedures for making nominations and withdrawing as a candidate from the election. Lastly, the section prescribes that a nomination not made in accordance with the Regulations is invalid.

Section 8 - Declaration of nominations

8.      Section 8 provides for the particular circumstances in which the returning officer declares the names of the candidates to be nominated, candidates are declared to be elected and must conduct a poll of the members of the TSRA to decide the election where there is more than one remaining candidate nominated for a relevant office.

Division 2 - Polling

Section 9 - Order of polls

9.      Section 9 provides the order of polls. The successful candidate in the election for the Chairperson must be announced before the election for the Deputy Chairperson is held and the successful candidate in the election for Deputy Chairperson must be announced before an election for the alternate Deputy Chairperson is held.

Section 10 - Deciding the order of candidates on ballot-papers

10.  Section 10 provides the returning officer must conduct a public draw of lots to decide the order in which candidate names appear on the ballot-paper for an election.

Section 11 - Ballot-papers

11.  Section 11 stipulates that ballot-papers must be in the approved form, with candidate names appearing in the order decided under section 10 and set out voting instructions consistent with section 13.

Section 12 - Polling procedure

12.  Section 12 lays down the polling procedure for the returning officer in relation to presenting the empty ballot-box at the meeting, distributing ballot-papers to each member and marking of each member's name on a list.

Section 13 - Voting

13.  Section 13 deals with voting. It provides that a voter is entitled to one vote in an election and sets out how a voter is to mark their preference or preferences on their ballot-paper and how a voter casts their vote. The section also guides the process for providing fresh ballot-papers, dealing with spoilt ballot-papers and disregarding certain ballot-papers.

Division 3 - Counting votes

Section 14 - Scrutineers

14.  Section 14 provides that each candidate in an election may appoint one scrutineer as his or her representative at the count of votes and sets out the requirements of appointing a scrutineer.

Section 15 - Conduct of the count

15.  Section 15 sets out, in part, the process for when all voters have cast their votes. In particular, it refers the reader to Schedule 1 of the Regulations, which sets out the method of deciding the election of a candidate.

Section 16 - Informal ballot-papers

16.  Section 16 defines informal ballot-papers and provides that the returning officer must reject a ballot-paper that is informal.

Section 17 - Completion of the count

17.  Section 17 prescribes the procedure for the returning officer and the scrutineers that applies after the counting of votes has been completed.

Division 4 – Other matters

Section 18 - Declaration

18.  Section 18 requires that the returning officer must, as soon as practicable after the completion of the count, declare the name of the candidate who is elected.

Section 19 - Request for recount

19.  Section 19 relates to requests for a recount of the ballot-papers. The returning officer must conduct a recount of the ballot-papers if asked by a candidate, orally or in writing, at any time before a declaration under section 18 is made. The returning officer is not required to conduct more than one recount and has the same powers in relation to the recount as the election officer has in relation to the counting of votes in the election.

Part 3 - Other elections

Section 20 - Election of new Chairperson or Deputy Chairperson

20.  Section 20 provides that the election of the Chairperson or Deputy Chairperson, because of a vacancy in either position, at a meeting of the TSRA other than the TSRA's first meeting after it is elected, must be conducted as if it were conducted at the first meeting of the TSRA.

21.  However, if the Deputy Chairperson is elected to fill a vacancy in the office of Chairperson, section 20 also modifies the conduct of an election for the Deputy Chairperson by omitting section 6 and substituting a new section 6. The new section 6 requires that as soon as practicable after the office of Deputy Chairperson becomes vacant, the returning officer must call for nominations to fill that vacant office.

Section 21 - Election of new alternate Deputy Chairperson

22.  Section 21 provides that at any meeting of the TSRA other than the TSRA's first meeting after it is elected, if the alternate Deputy Chairperson office is vacant, the TSRA may decide to elect an alternate Deputy Chairperson. If the TSRA decides to elect an alternate Deputy Chairperson, the election must be conducted as if it were conducted at the first meeting of the TSRA.

23.  However, if an alternate Deputy Chairperson is elected to fill a vacancy in the office of Chairperson or Deputy Chairperson and the TSRA decides to elect a new alternate Deputy Chairperson, section 6 is omitted and substituted with a new sections 6 and 7(3). The new section 6 requires that as soon as practicable after the TSRA has decided to elect a new alternate Deputy Chairperson the returning officer must call for nominations to fill that vacant office. New section 7(3) requires that a nomination must be given to the returning officer not later than 15 minutes after nominations have been called for.

Part 4 - Miscellaneous

Section 22 - Recording result of election

24.  Section 22 provides that the results of an election and the statement prepared by the returning officer must be recorded in the minutes of the meeting of the TSRA at which the election was held.

Section 23 - Destruction of election materials

25.  Section 23 requires that as soon as practicable after the end of three months after an election, the returning officer must destroy any nomination, ballot-paper, or appointment of a scrutineer, for the election in their possession.

Schedule 1 - Method of deciding the election of a candidate

26.  Item 1 of the Schedule provides the meaning of absolute majority of votes.

27.  Item 2 of the Schedule provides the meaning of exhausted ballot-paper and what must happen to that ballot-paper.

28.  Item 3 of the Schedule provides that the returning officer must count formal first preference votes.

29.  Item 4 of the Schedule provides that the candidate with an absolute majority of first preference votes is elected.

30.  Item 5 of the Schedule deals with the distribution of preferences. If no candidate has an absolute majority of first preferences, the candidate with the fewest first preferences is excluded, and their ballot-paper is transferred according to the expressed preference. This process is to be repeated until a candidate has an absolute majority.

31.  Item 6 of the Schedule applies if two or more unexcluded candidates receive the same number of votes and one of those candidates must be excluded. It provides that an intermediate poll must be conducted in accordance with Divisions 2, 3 and 4 of Part 2 of the Regulations. The candidate with fewer votes than any other candidate in the intermediate poll is excluded. If two or more candidates receive the same number of votes and a decision must be made to exclude, the decision is to be made by a public draw of lots.

32.  Item 7 of the Schedule provides for the process for deciding who of two or more unexcluded candidates is to be elected if they have received the same number of votes and there is no other unexcluded candidates. The returning officer is required to conduct an intermediate poll in accordance with Divisions 2, 3 and 4 of Part 2 of the Regulations and the candidate with the most votes is elected. If each of the candidates received the same number of votes, a public draw of lots is to decide who is to be elected.

ATTACHMENT B

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Torres Strait Regional Authority (Election of Officeholder) Regulations 2019

1.      The Torres Strait Regional Authority (Election of Officeholders) Regulations 2019 (Regulations) are 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 Regulations

2.      The Regulations provide for the conduct of Torres Strait Regional Authority (TSRA) officeholder elections and cover all matters relating to the nomination of candidates for election, conduct of the election, scrutiny of ballot-papers, declaration of the poll and recording the result of the election. These Regulations largely mirror those in the Torres Strait Regional Authority (Election of Officeholder) Regulations 1997, which were due to sunset on 1 April 2019.

Background

1.      Section 142 of the Aboriginal and Torres Strait Islander Act 2005 (Act) establishes the TSRA as a corporate Commonwealth entity. The TSRA is the leading Commonwealth representative body for Torres Strait Islander and Aboriginal people living in the Torres Strait, including two communities in the Northern Peninsula Area. The TSRA comprises 20 elected representatives (the Board) and Australian Public Service administration staff. The elected representatives are Torres Strait Islander and Aboriginal people who live and work in the region.

2.      Under section 142A, a function of the TSRA is to deliver programmes for Torres Strait Islanders and Aboriginal persons living in the Torres Strait area.

3.      Under section 142R of the Act, the TSRA consists of the eligible number of members elected in accordance with Division 5 of Part 3A. The Minister has not otherwise determined how the TSRA is to be constituted under section 142S of the Act.

4.      Under section 142T of the Act, the Australian Electoral Commission conducts TSRA elections to determine the members of the TSRA, which under section 142Y, must be held every four years. 

5.      Under section 143L, the TSRA must, at its first meeting after it is elected, elect from among its members by secret ballot a Chairperson and a Deputy Chairperson. Furthermore under section 143L, at any other meeting of the TSRA, the TSRA must elect a new Chairperson or Deputy Chairperson, if there are vacancies in those offices. All elections under section 143L must be conducted in accordance with the regulations.

6.      Under section 144D, the TSRA may also elect an alternate Deputy Chairperson.

Human rights implications

7.      The Regulations engage the following rights:

*         the right to enjoy and benefit from culture in Article 27 of the International Covenant on Civil and Political Rights (ICCPR) and Article 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR);

*         the right to self-determination in Article 1 of ICCPR and Article 1 of the ICESCR;

*         the right to take part in public affairs and elections in Article 25 of the ICCPR; and

*         the rights of equality and non-discrimination in Article 2, 16 and 26 of the ICCPR and Article 2 of the International Convention on the Elimination of all forms of Racial Discrimination (CERD).

Right to enjoy and benefit from culture

8.      The right to enjoy and benefit from culture is contained in Article 27 of the ICCPR and Article 15 of the ICESCR. Article 27 of the ICCPR protects the rights of individuals belonging to minorities within a country to enjoy their own culture. Article 15 of the ICESCR protects the right of all persons to take part in cultural life.

9.      The United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) specifically refers to Indigenous peoples' cultural values and rights associated with their ancestral lands and states that their relationship with nature should be regarded with respect and protected.[1] UNCESCR has also provided guidance on the communal and individual aspects of the right to culture, in particular that the reference to 'everyone' in Article 15 of the ICESCR may denote either individual or collective rights to culture.[2] UNCESCR has noted, in particular, that Indigenous peoples have the right to act collectively to protect their cultural heritage, traditional knowledge and cultural expressions.[3]

10.  The TSRA Board elects a Chairperson, Deputy Chairperson and an alternate Deputy Chairperson from its pool of elected representatives. The officeholders ensure that the TSRA Board engages in quarterly meetings and issue-specific out of session meetings in order to fulfil the functions and powers of the TSRA.

11.  Protecting and maintaining the special and unique Ailan Kastom is the first function listed for the TSRA under section 142A of the Act. Under the Act, Ailan Kastom means a body of customs, traditions, observances and beliefs of some or all of the Torres Strait Islanders living in the Torres Strait area, and includes any such customs, traditions and observances and beliefs relating to particular persons, areas, objects or relationships. The officeholders of the TSRA and the TSRA Board are thus enabled to make decisions on behalf of the TSRA and the Torres Strait region in relation to Ailan Kastom.

12.  The right to enjoy and benefit from culture is advanced by the Regulations. As discussed, the Regulations establish the process by which the Torres Strait Islander and Aboriginal members of the TSRA can be subsequently elected as officeholders. The Regulations ensure that the elections are conducted in an impartial, independent and fair manner. In doing so, they provide for the right to enjoy and benefit from Ailan Kastom for individuals and communities in the Torres Strait region through enabling them to participate in management and decision-making on behalf of the TSRA.

13.  One of the TSRA Board's primary functions is to approve programme mandates. These programme mandates guide the work of the TSRA in: economic development; fisheries; culture, art and heritage; native title; environmental management; governance and leadership; healthy communities; and safe communities. It is through these programmes, Ailan Kastom is maintained. In this way, the individual right to enjoy and benefit from Ailan Kastom or culture is advanced by the Regulations.

Right to self-determination

14.  The right to self-determination is a collective right, in that it pertains to groups of people, as opposed to individuals within a group. The right to self-determination, as set out in Article 1 of the ICCPR and Article 1 of the ICESCR, provides for the entitlement of peoples to have control over their destiny and to be treated respectfully. This includes peoples being free to collectively pursue their economic, social and cultural development without outside interference.

15.  The Act as a whole promotes the right to self-determination by establishing the TSRA (among other statutory bodies) and providing governance structures that promote the independence of Torres Strait Islander and Aboriginal peoples.

16.  Following on from the Act, the Regulations promote the right to self-determination by allowing for a process to elect Torres Strait Islander and Aboriginal officeholders of the TSRA, thereby enabling Torres Strait Islander and Aboriginal people to govern themselves without outside interference.

Right to take part in public affairs and elections

17.  Article 25 of the ICCPR guarantees the rights of citizens to stand for public office, to vote in elections and to have access to positions in the public service.

18.  The UNHRC has stated that the conduct of public affairs relates to the exercise of legislative, executive and administrative powers, and covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels.[4] Citizens participate directly in the conduct of public affairs when they are elected to public office. They also do so when they vote to decide public issues through a referendum or other electoral process. Indirect participation takes place when people elect bodies such as parliaments to represent them.

19.  The Regulations advance the rights of Torres Strait Islander and Aboriginal persons in the Torres Strait region. The Regulations enable Torres Strait Islander and Aboriginal persons to participate in the affairs of the TSRA by establishing a mechanism for eligible candidates to be elected as officeholders of the TSRA.

Rights of equality and non-discrimination

20.  Articles 2, 16 and 26 of the ICCPR affirm the rights of all people to be treated equally. Article 2 of the ICESCR and Article 5 of the CERD also prohibit discrimination on the basis of race. These rights recognise that all human beings have the right to be treated equally and not to be discriminated against.

21.  Of particular relevance in the context of the Regulations, CERD establishes a general prohibition on racial discrimination. The Racial Discrimination Act 1975 implements this prohibition in Australian domestic law.

22.  The purpose of the Regulations is to enable the self-governance and thus self-determination of Torres Strait Islander and Aboriginal people in the Torres Strait region. By electing Torres Strait Islander and/or Aboriginal officeholders of the TSRA, the Torres Strait region is governed by a representative body.

23.  The Regulations, as required by the Act, constitute differential treatment on the basis of race and can accordingly be characterised as being part of a broader 'special measure' within the meaning of Article 1(4) of the CERD and subsection 8(1) of the Racial Discrimination Act 1975. Article 1(4) provides that 'special measures' are deemed not to be discrimination. Special measures are designed to 'secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms.'

24.  For a measure to be characterised as a 'special measure' it must:

*         be for a particular group or individuals;

*         be taken for the sole purpose of securing the adequate advancement of those groups or individuals;

*         be 'necessary'; and

·         not continue after its objectives have been achieved.

25.  The Regulations meet these criteria, as they:

*         apply directly to Torres Strait Islander and Aboriginal persons in the Torres Strait area;

*         have as their sole purpose the effective involvement of Torres Strait Islander and Aboriginal persons in the formulation of policies and programmes affecting them;

*         are necessary to empower Torres Strait Islander and Aboriginal persons to participate in public affairs, and are a reasonable and proportionate response given the historical marginalisation from public life of Torres Strait Islander and Aboriginal persons; and

*         have a purpose which has yet to be achieved, as the ongoing disadvantage experienced by Torres Strait Islander and Aboriginal persons demonstrates.

26.  The Regulations are appropriate, adapted and proportionate to promote the development of self-management and autonomy of the people in the Torres Strait region by ensuring that the Chairperson, Deputy Chairperson and alternate Deputy Chairperson are elected fairly and efficiently. The Regulations remain necessary to advance and support Torres Strait Islander and Aboriginal self-determination.

Conclusion

27.  The Regulations are compatible with human rights because they promote the protection of human rights and to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate.