Victorian Bills Explanatory Memoranda

[Index] [Search] [Download] [Bill] [Help]


ELECTORAL BILL 2002

                             Electoral Bill

                              As Sent Print

               EXPLANATORY MEMORANDUM

                                   General
The Electoral Bill replaces the electoral provisions of The Constitution Act
Amendment Act 1958, which is Victoria's principal electoral legislation.
The Constitution Act Amendment Act 1958 is outdated and does not
provide for modern election management practices. The Electoral Bill is
logically organised and expressed in plain English. The Bill retains all
essential electoral principles while leaving more detailed administrative
procedures to regulations or the Victorian Electoral Commission's directions.
This will provide flexibility and facilitate improvements in election
management, while at the same time ensuring transparency and
accountability in the election process.

                               Clause Notes

                       PART 1--PRELIMINARY
Clause 1    sets out the purpose and outline of the Bill.

Clause 2    provides for the commencement of the Bill on a day to be
            proclaimed. The default date is 1 January 2003.

Clause 3    sets out the definitions of terms used in the Bill.

Clause 4    sets out the definition of "electoral matter".

Clause 5    provides that the operation of the Bill extends to those election
            officials appointed for the purposes of the Bill outside Victoria,
            to enable votes in a Victorian election to be taken interstate or
            overseas.

      PART 2--VICTORIAN ELECTORAL COMMISSION
Clause 6    establishes the Victorian Electoral Commission (the
            Commission) as a body corporate.



                                       1
541226                                                BILL LA AS SENT 20/5/2002

 


 

Clause 7 provides that the Commission is comprised of one member being the Electoral Commissioner. Clause 8 sets out the responsibilities and functions of the Commission. Clause 9 sets out the powers of the Commission. Clause 10 provides that the Commission is not subject to the direction or control of the Minister in respect of the performance of its responsibilities and functions and the exercise of its powers. Clause 11 provides that the Commission must publish an election manual containing the directions issued by the Commission for the purposes of the Bill. This clause also provides that the Commission may publish guidelines. Clause 12 provides that the Electoral Commissioner is appointed by the Governor in Council. The Commissioner is appointed for a term of 10 years and may be reappointed for further terms. This clause provides that the Governor in Council cannot appoint any person who is a member of a registered political party or has been a member within a period of five years preceding the appointment. This clause also sets out when the office of the Electoral Commissioner becomes vacant. This clause provides that nothing in the Public Sector Management and Employment Act 1998 applies to the office of the Electoral Commissioner. This clause provides that the Governor in Council may fix the terms and conditions of employment that apply to the Electoral Commissioner. Clause 13 provides that the Governor in Council may appoint a Deputy Electoral Commissioner. The Deputy Electoral Commissioner is appointed for a term of 10 years and may be reappointed for further terms. This clause provides that the Governor in Council cannot appoint any person who is a member of a registered political party or has been a member within a period of five years preceding the appointment. This clause also sets out when the office of the Deputy Electoral Commissioner becomes vacant. This clause provides that nothing in the Public Sector Management and Employment Act 1998 applies to the office of the Deputy Electoral Commissioner. This clause provides that the Governor in Council may fix the terms and conditions of employment that apply to the Deputy Electoral Commissioner. This clause provides for the appointment of an eligible person to 2

 


 

act in the place of the Deputy Electoral Commissioner during a period of inability. Clause 14 provides for the suspension from office of the Electoral Commissioner or the Deputy Electoral Commissioner. Clause 15 provides for other terms and conditions of employment that apply to the Electoral Commissioner and Deputy Electoral Commissioner. Clause 16 sets out the functions, powers and duties of the Electoral Commissioner and the Deputy Electoral Commissioner. Clause 17 makes provision for the employment of staff of the Commission. Staff are employed under Part 3 of the Public Sector Management and Employment Act 1998. This clause also states that a person employed by the Commission may not nominate for election for the Parliament of Victoria or of the Commonwealth or of any other State or Territory. Clause 18 provides that the Commission may appoint appropriate persons as election managers and election officials, and provides for their remuneration. This clause also states that a person appointed by the Commission under this section may not nominate for election for the Parliament of Victoria or of the Commonwealth or of any other State or Territory. If a person does nominate, the person's appointment is revoked. The clause also provides that in a simultaneous election, the election manager for an electoral district conducts the election for that part of the electoral province that is within the district, until the time when the votes from each voting centre have been counted and the votes for the province election have been forwarded to the election manager for the province. Clause 19 sets out the Commission's power to delegate any function or power of the Commission other than the power of delegation. It also sets out the power of the Electoral Commissioner to delegate any function or power of the Electoral Commissioner other than the power of delegation. 3

 


 

PART 3--ENROLMENT PROCEDURES AND INFORMATION Division 1--Register of Electors Clause 20 provides that the Governor in Council may arrange with the Governor-General of the Commonwealth for a joint enrolment process and the exchange of information necessary for the preparation and ongoing maintenance of the rolls and the register of Victorian electors. Clause 21 requires the Commission to establish and maintain a register of all electors for Victoria. Clause 22 sets out the entitlement to enrolment of electors for the Legislative Assembly and the Legislative Council. This clause also provides that a person who has attained the age of 17 years is entitled to enrol on the register as an elector in specified circumstances. It also provides for the enrolment of prisoners, eligible overseas electors, itinerant electors and Antarctic electors. Clause 23 sets out that a person who is entitled to enrol on the register, other than by virtue of clauses 22(3), 22(4) and 22(5) (overseas, itinerant and age 17 electors), must enrol within 21 days of becoming so entitled. Electors who have changed address must notify the Commission in writing of their new address within 21 days of becoming entitled to be enrolled for that address. Failure to comply with this section attracts a penalty of 1 penalty unit ($100). This clause also sets out the process for provisional enrolment of a person who has attained the age of 17. The clause provides that the Commission must advise a person in writing of a decision to reject a claim for enrolment. Clause 24 sets out who may apply to become a general postal voter. This clause also provides that an application to be a general postal voter received during the period that starts at 8 p.m. on the day of the close of the roll and ends at 6 p.m. on election day will not be considered until after that period has expired. Clause 25 sets out the grounds upon which the Commission may refuse to include a person's name on the register of electors. This clause also provides that the Commission must notify the person of that decision and advise the person of his or her right to appeal to the Victorian Civil and Administrative Tribunal (VCAT). 4

 


 

Clause 26 sets out the information that must be provided to the Commission by-- the Registrar of Births, Deaths and Marriages; and the Secretary to the Department of Justice. It also provides that the Commission may by notice require-- an Agency Head within the meaning of the Public Sector Management and Employment Act 1998; or the Chief Executive Officer appointed by a Council; or the chief executive officer of a public statutory authority; or a member of the police force; or a distribution company or a retailer within the meaning of the Electricity Industry Act 2000; or an elector or a person qualified to be an elector-- to provide information required by the Commission to prepare, maintain or review the register. The information must be provided within 21 days after the date specified in the notice. Clause 27 provides that the Commission must regularly review the register of electors to ensure the details are accurate. Clause 28 provides that the register of electors is not available for public inspection. Division 2--Electoral Rolls Clause 29 provides that the Commission must prepare an electoral roll for a district or a province after the close of the roll in relation to an election or when otherwise required under any other Act. The form of the roll is determined by the Commission. This clause also provides that a person who has not attained the age of 18 years on election day is not entitled to be included on the electoral roll. This clause also provides that the Commission is not to include on the roll the names of electors added to the register or changes made to the register in relation to electors' particulars after the close of the roll. 5

 


 

Clause 30 enables errors in the rolls to be corrected by the Governor in Council if there has been any accidental or unavoidable impediment, misfeasance or omission in the preparation or printing of any electoral roll under this Part. Clause 31 sets out the application process to be a silent elector. Clause 32 provides for the inspection (free of charge) of lists of electors at the office of the Commission during office hours and the latest print of electoral rolls at places and during times determined by the Commission. Division 3--Enrolment Information Clause 33 sets out what enrolment information must be provided by the Commission to each registered political party, member of the Assembly or Council and candidate. Clause 34 sets out what enrolment information may be provided by the Commission to persons and organisations other than registered political parties, members of Parliament and candidates. The Commission must consult with the Privacy Commissioner before providing any information Clause 35 requires the Commission to lay a report before both Houses of Parliament as soon as practicable after 30 June each year on the provision of enrolment information under clause 34 during the previous 12 months. Clause 36 prohibits the use of enrolment information by a registered party, person or organisation except for a permitted purpose, which is defined in sub-clauses (2), (3) and (4). Failure to comply with this clause attracts a maximum penalty of 600 penalty units ($60 000) in the case of a natural person, and 3000 penalty units ($300 000) in the case of a body corporate or registered political party. Clause 37 provides that enrolment information is protected information in relation to a person if the person knows or has reasonable grounds for believing that the information has been provided under clause 33 or 34. This clause prohibits the disclosure of protected information unless it is for a permitted purpose as defined in clause 36. This clause also provides that a person must not use protected information for a commercial purpose. Failure to comply with this clause attracts a maximum penalty of 6

 


 

600 penalty units ($60 000) in the case of a natural person, and 3000 penalty units ($300 000) in the case of a body corporate or registered political party. Division 4--Enrolment Objections and Tribunal Reviews Clause 38 sets out who may object to the enrolment of a person and the grounds upon which an objection may be based. Clause 39 provides that if an objection is made under clause 38, the Commission must notify the person whose enrolment is objected to. Notice must be in the prescribed form. Clause 40 provides that where a person receives notice of an objection, the person may orally or in writing answer the objection in the manner specified in the notice. Clause 41 provides for the determination of the objection by the Commission. Clause 42 sets out the circumstances in which a person may seek a review of a decision of the Commission by VCAT. This section also provides that an application for review must be made within 28 days of the day on which the decision is made by the Commission. However, if the person requested a statement of the reasons for the decision, the 28 days runs from the date the statement of reasons is given to the person or from the day the person is informed that a statement or reasons will not be given. PART 4--REGISTRATION OF POLITICAL PARTIES Clause 43 requires the Commission to establish and maintain a Register of Political Parties containing a list of the political parties registered under this Part. Clause 44 provides that a reference in the Bill to a registered officer of a registered political party is a reference to the person shown on the Register of Political Parties as the registered officer or the person nominated by the registered officer as the deputy registered officer of that party. This clause also sets out the information that must be contained in the nomination for a deputy registered officer. 7

 


 

Clause 45 provides that an eligible political party may apply to the Commission to be registered. It also sets out the information that must be contained in and accompany the application. If a party's application for registration is refused, the party may not reapply within 6 months of that refusal. Clause 46 provides that the Commission may not register a party from the day the writ for an election is issued until the day that the writ is returned. This clause also provides that VCAT may not review a decision of the Commission on an application made under clause 45 during this period. Clause 47 provides that the Commission must refuse an application for the registration of a political party if the party's name has certain characteristics. Clause 48 sets out the procedure to be followed if the Commission is of the opinion that the Commission should refuse the application of a political party and the political party may be prepared to vary the application. Clause 49 requires the Commission to give notice in the Government Gazette and to advertise when an application for registration of a political party is lodged with the Commission. In the notice the Commission must set out the particulars required under clause 45(2) of the Bill and invite a written submission in respect of the application from any person who believes that the application-- does not relate to an eligible political party; or is not in accordance with clause 45; or should be refused under clause 47. Before registering a political party, the Commission must have given the notice in the Government Gazette as required and considered any written submission. Before considering the written submissions, the Commission must forward a copy of any submissions received to the political party applying for registration and give the political party an opportunity to reply. Clause 50 sets out the procedure to be followed if the Commission determines that a political party that has applied for registration may be registered. It also sets out the procedure to be followed if 8

 


 

the Commission determines that a political party should not be registered. Clause 51 sets out how a political party may apply to the Commission for a change to the Register of Political Parties, and the process that the Commission must follow when it receives such an application. Clause 52 provides that the Commission may review the registration of political parties from time to time and sets out the circumstances in which the Commission must review the registration of a political party. Clause 53 sets out the procedure for voluntary de-registration of a political party. Clause 54 requires the Commission to de-register a party that has not endorsed any candidate for an election held within the last 5 years. Clause 55 sets out the procedure to be followed by the Commission to de- register a political party that has failed to provide information and documents requested as part of a review of the party's registration. Clause 56 sets out the procedures to be followed by the Commission to de-register a political party on other specified grounds. Clause 57 provides that if a political party is de-registered under clause 53, 54, 55 or 56 the Commission must cancel the particulars of the party in the Register of Political Parties. Clause 58 provides that if a political party is de-registered under clause 53, 54, 55 or 56, the political party, or a party whose name so closely resembles the name of the de-registered party that it is likely to cause confusion, is ineligible for registration until after the simultaneous election that first occurs following the de-registration. Clause 59 provides that the Register of Political Parties must be open for inspection, free of charge, at the office of the Commission. Clause 60 sets out the jurisdiction of VCAT to review certain decisions made by the Commission under this Part of the Act. 9

 


 

PART 5--ELECTION PROCEDURES Division 1--Writs Clause 61 sets out the procedure for the issue of a writ for an election. Clause 62 provides that the issue of a writ for a by-election must be delayed where a member of the Assembly or Council resigns to seek election to the Parliament of the Commonwealth and intends to return to the State Parliament if the bid to enter the Commonwealth Parliament fails. Clause 63 provides that a writ for an election is deemed to have been issued at 6 p.m. on the day it is issued. This clause sets out information that must be included in the writ. This clause also sets out time lines associated with an election. Clause 64 sets out what the Commission must do upon receipt of a writ for an election under clause 61. Division 2--Voting Centres Clause 65 provides for the appointment and advertising of various types of voting centres by the Commission. There will be election day voting centres, early voting centres and mobile voting centres. The clause provides that how-to-vote cards may be supplied to election managers for display to electors at mobile voting centres. Clause 66 prohibits the use of any part of a licensed premises within the meaning of the Liquor Control Reform Act 1998 as a voting centre unless the Commission considers there are exceptional circumstances. If a licensed premises is authorised by the Commission for use as a voting centre, that part of the premises used as the voting centre must not be used for the sale of liquor or be accessible from any other part of the premises which is used for the sale of liquor. Clause 67 provides that the Commission may use as an election day voting centre any room or hall in a prescribed premises. The term "prescribed premises" is defined in clause 67(5). This clause also sets out the obligations placed on the Commission in using a prescribed premises. The Magistrates' Court may determine any dispute between the Commission and the owners of the premises over the amount payable for any damage to the premises while in use as a voting centre. 10

 


 

Division 3--Nominations and Candidates Clause 68 requires the Commission to make available the names and contact details of the candidates for an election after the issue of the writ for the election. The Commission must also indicate the name of any person who has ceased to be a candidate for the election. Clause 69 sets out how a person may become a candidate for an election. Candidates endorsed by a registered political party may only be nominated with the Commission. Other candidates must nominate with the appropriate election manager. Clause 70 sets out the grounds upon which the Commission or an election manager may reject a nomination. Clause 71 sets out the procedure for the retirement of a candidate before the final nomination day. Clause 72 sets out the circumstances in which an election fails and the procedure that must be followed if an election has failed. Division 4--Arrangements for Holding Elections Clause 73 provides that an election must be held if there is more than 1 candidate for an election in a district or province, and that the election manager must display the names of the candidates and advise the Commission of the candidates' names. Clause 74 sets out the process for the preparation of ballot-papers by the Commission immediately after noon of the final nomination day. Clause 75 provides that the Commission must publicly advertise the names of candidates. Clause 76 sets out provisions relating to scrutineers: their appointment, the numbers permitted to be appointed, and their conduct in voting centres. This clause also prohibits a scrutineer from interfering with or attempting to influence an elector within a voting centre, or communicating with any person in a voting centre (except as is necessary in the discharge of the functions of the scrutineer) or handling any ballot-paper. Failure to comply with these provisions may incur a penalty of up to six months imprisonment or 60 penalty units ($6000). 11

 


 

Division 5--How-to-vote Cards Clause 77 provides for the submission of a how-to-vote card to the appropriate election manager for registration. This clause also sets out the matters that the election manager must consider in determining whether to register or refuse to register a how-to- vote card. Clause 78 provides that any person may apply to the Commissioner for review of the election manager's decision to register or refuse to register a how-to-vote card. The Commission must determine the application no later than noon on the next day after receiving an application for review. Clause 79 provides for the submission of a how-to-vote card by the registered officer of a registered political party to the Commission. This clause also sets out the matters that the Commission must consider in determining whether to register or refuse to register a how-to-vote card. Clause 80 provides that any person may apply to VCAT for review of the Commission's decision to register or refuse to register a how-to- vote card. VCAT must determine the application no later than 5 p.m. on the next working day after receiving an application. Clause 81 sets out the number of how-to-vote cards that must be supplied to an election manager or the Commission if the card is registered under clause 77 or 79. Clause 82 provides that registered how-to-vote cards must be available for public inspection. Division 6--Electoral Matter Clause 83 places a prohibition on the printing, publication and distribution of electoral matter unless properly authorised. Failure to comply with this provision can attract a penalty of up to 10 penalty units ($1000) for a natural person, and up to 50 penalty units ($5000) for a body corporate. Clause 84 makes it an offence to print, publish or distribute any matter that is likely-- to mislead or deceive a voter when casting his or her vote; or 12

 


 

to induce an elector to mark his or her vote otherwise than in accordance with the directions of the ballot-paper. Failure to comply with this provision can attract a penalty of up to six months imprisonment or 60 penalty units ($6000) for a natural person, and up to 300 penalty units ($30 000) for a body corporate. This clause also provides for a defence to a prosecution for an alleged offence against this provision. Clause 85 provides that any article in a newspaper containing electoral matter that is paid for must have the word "advertisement" printed as a headline. Failure to comply with this provision can attract a penalty of up to 5 penalty units ($500) for a natural person, and up to 25 penalty units ($2500) for a body corporate. Clause 86 provides that the author of any published comment on electoral matters must be identified in the publication during a relevant period. Failure to comply with this provision may attract a penalty of up to 5 penalty units ($500) for a natural person and up to 25 penalty units ($2500) for a body corporate. PART 6--VOTING Division 1--Entitlement to Vote Clause 87 sets out who is entitled and obliged to vote at an election. Division 2--Voting at an Election Day Voting Centre Clause 88 provides that immediately before voting commences at an election day voting centre, an election official must exhibit the ballot-box open and empty, and then close and seal it. Clause 89 provides that the hours of voting at an election day voting centre are from 8 a.m. to 6 p.m. Clause 90 sets out the questions that an election official must ask of a prospective voter, and when a claim to vote must be rejected. Clause 91 provides that if an election official reasonably suspects a person claiming to vote of impersonation, the election official may require the person to sign a declaration of identity. A person who does not comply with this request is prohibited from voting and is liable to a fine of up to 1 penalty unit ($100). 13

 


 

Clause 92 provides that if a person is entitled to vote, the election official must give the person a ballot-paper and record a mark against the person's name on the roll. Clause 93 sets out how an elector is to mark the ballot-paper. Clause 94 sets out procedures for electors who require assistance to vote. Clause 95 provides that if a person who is unable to write is required to sign his or her name, the person may make a mark, which has to be witnessed. Clause 96 provides that if an elector spoils his or her ballot-paper, the elector may return it to an election official and receive a new one. Clause 97 sets out when the Commission must adjourn the holding of an election at an election day voting centre and the procedures relating to the adjournment. Division 3--Early Voting and Postal Voting Clause 98 lists the electors who may apply to vote before election day. Clause 99 provides that an elector may apply to vote at an early voting centre during the period starting at 2 p.m. on the final nomination day and ending at 6 p.m. on the day before election day. The clause also provides that ordinary voting provisions apply to early voting centres. Clause 100 provides that electors voting at overseas and interstate early voting centres may use such means of electronic voting as are provided there. Clause 101 provides that an elector may apply to vote by post and under which circumstances the Commission must not consider such an application. Clause 102 sets out the duties of an authorised witness to an application to vote by post. Clause 103 provides that in certain circumstances, applications to vote by post made outside Australia do not have to be witnessed, but do need to be accompanied by a copy of a part of the applicant's passport. 14

 


 

Clause 104 requires the Commission to deliver a declaration and ballot-paper to a person whose application to vote by post complies with the Bill. Clause 105 provides that the Commission must issue declarations and ballot- papers to general postal voters as soon as practicable after the final nomination day. Clause 106 sets out the directions for postal voting. Division 4--Specific Provisions Clause 107 provides that a silent elector is not required to provide his or her address in any application or declaration concerned with voting. Clause 108 sets out the voting procedures for a person whose name cannot be found on an electoral roll. Clause 109 sets out the procedures for absent voting. Clause 110 sets out the voting procedures for a person whose name has already been marked on the roll as having voted at the election. PART 7--ELECTION RESULTS Clause 111 provides for the preliminary scrutiny of declaration votes. A declaration vote must be disallowed if it is received more than nine days after election day. Clause 112 sets out the circumstances in which a ballot-paper must be rejected as informal. Clause 113 sets out the counting procedures where there are only two candidates. Clause 114 sets out the counting procedures where there are more than two candidates, including provisions for the distribution of preferences. Clause 115 provides that electronic counting equipment may be used in the counting of votes. Clause 116 provides for an indicative two candidate preferred distribution of preferences. Clause 117 provides for the determination of a tied election. 15

 


 

Clause 118 provides that an election manager may adjourn the count of votes from time to time. Clause 119 provides for a preference distribution for information purposes after a candidate is declared elected. Clause 120 sets out provisions for recounts of ballot-papers. Clause 121 sets out provisions for the declaration of the result of an election. Clause 122 provides that ballot material must be secured and stored in accordance with the regulations. Clause 123 provides that after an election the Commission must make the results available, and must provide details of voters to registered political parties and independent members that request this information. Misuse of this information may attract a penalty of up to 600 penalty units ($60 000) for a natural person and up to 3000 penalty units ($300 000) for a body corporate or registered political party. PART 8--COURT OF DISPUTED RETURNS Division 1--Constitution and Powers Clause 124 provides that the Supreme Court is the Court of Disputed Returns for the purposes of the Bill, and that the Supreme Court sitting as the Court of Disputed Returns may be constituted by a single Judge. Clause 125 sets out the powers of the Court of Disputed Returns, which include the power to declare any election void. Clause 126 provides that the Court of Disputed Returns must act fairly and according to the substantial merits of a petition. Clause 127 provides that the Court of Disputed Returns is bound by the rules of natural justice, is not bound by the rules of evidence, and must conduct proceedings with as little formality and technicality as the requirements of the Bill permit. Clause 128 provides that a party to a petition must not be represented by a legal practitioner unless all parties so consent or the Court of Disputed Returns so grants leave. 16

 


 

Clause 129 provides that a decision or order of the Court of Disputed Returns is final and cannot be appealed. This clause limits the jurisdiction of the Supreme Court. The Court of Disputed Returns is comprised of a single judge of the Supreme Court. However, the practice and procedure followed by the Court of Disputed Returns do not follow the practice and procedure that is followed by the Supreme Court in accordance with the Supreme Court Rules. Rather, the practice and procedure followed by the Court of Disputed Returns are provided for in this Bill. Consequently, this clause is a limitation on the jurisdiction of the Supreme Court. Clause 129 is the same as section 292 of The Constitution Act Amendment Act 1958 and does not alter current arrangements. Clause 130 provides that the Court of Disputed Returns may award costs against an unsuccessful party to a petition and may recommend that costs be paid by the State. Clause 131 provides that all other costs awarded by the Court of Disputed Returns are recoverable as if the Court's order were a judgment of the Supreme Court. Clause 132 sets out the consequences of Court of Disputed Returns' declarations, including that, if the Court of Disputed Returns declares an election void, a re-election must be held on the same roll as the voided election. Division 2--Disputing Validity of Election Clause 133 provides that the validity of an election can only be disputed by means of a petition to the Court of Disputed Returns. Clause 134 provides that an election may be disputed by a candidate or elector for the election in dispute, or by the Commission. Clause 135 sets out the requirements for a petition to the Court of Disputed Returns. Clause 136 provides that the Commission may, by leave of the Court of Disputed Returns, be represented and heard in a proceeding. Clause 137 restricts the admission of evidence that a person was not permitted to vote. 17

 


 

Clause 138 provides that the Court of Disputed Returns must inquire whether the petition was satisfactory and may inquire whether persons who voted were entitled to do so and whether votes were improperly admitted or rejected. However, the Court of Disputed Returns must not inquire into the correctness of any electoral roll or the register of electors. Clause 139 provides that the Court of Disputed Returns must not declare an election void on account of anything which in the Court's opinion did not affect the result of the election. Clause 140 provides that despite clause 139, if the Court of Disputed Returns finds that a person declared elected has committed bribery or has interfered with political liberty at any election, the Court must declare the election void. Clause 141 requires the Prothonotary of the Supreme Court to send a copy of a petition or an order of the Court of Disputed Returns to the Clerk of the Parliaments. Clause 142 sets out what happens to the deposit accompanying a petition to the Court of Disputed Returns. Division 3--Referral of Qualification or Vacancy Clause 143 provides that Parliament may refer a question in relation to the qualification of a Member or a vacancy to the Court of Disputed Returns. Clause 144 provides that in a referral the presiding officer of the relevant House of Parliament must give the Court of Disputed Returns a statement of the question and related documents. Clause 145 provides that the Court of Disputed Returns may allow any interested person to be heard on the reference and may direct that notice of the reference be served on a specified person. Clause 146 sets out the powers of the Court of Disputed Returns on the hearing of a reference. Clause 147 requires the Prothonotary of the Supreme Court to send a copy of the order or declaration of the Court of Disputed Returns to the Clerk of the Parliaments. 18

 


 

PART 9--ENFORCEMENT AND OFFENCES Division 1--Offences Clause 148 makes it an offence to provide false or misleading information or to make a false or misleading statement under the Bill. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 149 makes it an offence to forge or utter electoral papers. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 150 makes it an offence to vote in the name of another person or to vote more than once. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 151 makes bribery to influence a person's election conduct an offence. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 152 makes it an offence to interfere with a person's political liberty. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 153 makes it an offence to tamper with ballot material. The penalty is up to 5 years imprisonment or up to 600 penalty units ($60 000). Clause 154 makes it an offence to infringe the secrecy of an elector's vote. The penalty is up to 1 year imprisonment or up to 120 penalty units ($12 000). Clause 155 makes it an offence to disseminate exit poll results during the hours of voting on election day. The penalty is up to 6 months imprisonment or up to 60 penalty units ($6000). Clause 156 makes it an offence to distribute printed electoral material other than registered how-to-vote cards within 400 metres of a voting centre on election day. The penalty is up to 6 months imprisonment or up to 60 penalty units ($6000). Clause 157 provides for the inspection and confiscation of printed electoral material other than registered how-to-vote cards. A person who refuses to comply with a request by an election manager or election official to show how-to-vote cards and hand over 19

 


 

unregistered cards is liable to a penalty of up to 10 penalty units ($1000). Clause 158 makes it an offence to canvass for votes or conduct similar activities within 3 metres of a voting centre. The penalty is up to 5 penalty units ($500). Clause 159 makes it an offence to use a public address system or make a demonstration within 400 metres of a voting centre during the hours of voting. The penalty is 1 penalty unit ($100). Clause 160 makes it an offence to impersonate a member of the Commission's staff, an election manager or an election official. The penalty is up to 10 penalty units ($1000). Clause 161 provides for offences by staff and officers of the Commission. The penalty is up to 6 months imprisonment or 60 penalty units ($6000) for wilful contravention, and up to 10 penalty units ($1000) for negligent contravention. Division 2--Enforcement of compulsory voting Clause 162 requires the Commission to prepare a list of non-voters after every election. Clause 163 requires the Commission to send a notice within six months after an election to non-voters, except for those who meet a criterion excusing them from voting. Clause 164 provides that an elector who has received a non-voter notice must complete and return it, and how the Commission must deal with returned notices. Clause 165 provides that the list of non-voters is evidence of the contents and facts in the list. Clause 166 makes it an offence not to vote at an election without a valid and sufficient excuse, not to complete and return a non-voter form, or to state in the form a false reason for not voting. The penalty is 1 penalty unit ($100). Clause 167 provides that an authorised officer may serve an infringement notice on a person believed to have committed an offence under clause 166. Clause 168 sets out the form of an infringement notice. 20

 


 

Clause 169 provides for the withdrawal of an infringement notice. Clause 170 provides that the penalty for an offence for which an infringement notice has been issued is 50% of the penalty for an offence under clause 166--that is, $50. Clause 171 provides that if a person pays the penalty in the infringement notice within the specified time, no further proceedings are to be taken and no conviction is to be recorded. Clause 172 provides that the failure to pay an infringement penalty or the withdrawal of an infringement notice does not prevent proceedings being taken for an alleged offence. Clause 173 provides that payment of the infringement penalty may be enforced in accordance with the PERIN Court process in the Magistrates' Court Act 1989. Division 3--General Enforcement Provisions Clause 174 provides that an election manager or election official has the power to maintain order at a voting centre and to remove a person who is causing a disturbance, and that police must assist an election manager or election official in the exercise of these powers. Clause 175 provides that the Commission may institute proceedings against any person committing an offence against the Bill, and that any other person may also institute proceedings. Clause 176 provides that the Supreme Court may grant an injunction restraining a person from engaging in conduct contravening the Bill or requiring a person to do any act or thing. Clause 177 provides that proceedings for an offence which is not indictable must be commenced within one year after the commission of the alleged offence. PART 10--GENERAL Clause 178 provides that a written statement with the common seal of the Commission under which a person is appointed is evidence of the matters in the statement. Similarly, a statement in writing signed by the election manager in relation to an election is evidence of the matters in the statement. 21

 


 

Clause 179 provides for the liabilities of corporations for an offence under the Bill. Each director or person concerned in management is also guilty of an offence. Clause 180 provides for the refund of deposits to eligible candidates in certain cases. Clause 181 provides that all fees and deposits payable under the Act and all penalties for offences under the Bill when recovered must be paid into the Consolidated Fund. The money required for the administration of the Bill (except as otherwise provided by clause 215) is to be paid out of the Consolidated Fund. Clause 182 provides that section 44(3) of the Interpretation of Legislation Act 1984 will not apply to the Bill. This means that if the time limited for the doing of anything under the Bill falls on a weekend or public holiday, the time limit will not be extended to the next working day. Clause 183 states that it is the intention of clause 129 to alter or vary the jurisdiction of the Supreme Court. Clause 184 provides for the Governor in Council on the recommendation of the Commission to make regulations under the Act. PART 11--TRANSITIONAL AND CONSEQUENTIAL Clause 185 repeals various sections and Parts of The Constitution Act Amendment Act 1958. This clause also states that except as clearly provided, all circumstances existing under The Constitution Act Amendment Act 1958 continue to operate. Clause 186 sets out transitional provisions relating to any pending or existing proceedings immediately before the Bill commences in which the Electoral Commissioner was a party. This clause also provides that any reference in an Act, regulation, subordinate instrument or other document to the Electoral Commissioner is to be construed as a reference to the Commission unless the contrary intention appears. Any reference to The Constitution Act Amendment Act 1958 is to be construed as a reference to the Electoral Act 2001 unless the contrary intention appears. Clause 187 makes consequential amendments to the Agricultural Industry Development Act 1990. 22

 


 

Clause 188 substitutes references to The Constitution Act Amendment Act 1958 in the City of Melbourne Act 2001 with references to the Electoral Act 2001. Clause 189 amends the Constitution Act 1975 to provide that to be eligible to be elected to Parliament, a person must be enrolled on the register of electors and entitled to vote at an election. The clause also amends the Constitution Act 1975 to provide that a person who is serving a sentence of 5 years imprisonment or more is disqualified from enrolling to vote. The clause also repeals an unnecessary provision of the Constitution Act 1975 which provides that persons who have changed their name are not disqualified from voting under their name on the roll. Finally, the clause makes consequential amendments to the Constitution Act 1975. Clause 190 makes consequential amendments to the Electoral Boundaries Commission Act 1982. The clause also omits unnecessary references in the Electoral Boundaries Commission Act 1982 to the protected tenure of the Electoral Commissioner. This matter is now dealt with solely in the Bill. Clause 191 makes consequential amendments to the Essential Services Act 1958. Clause 192 makes a consequential amendment to the Fundraising Appeals Act 1998. Clause 193 makes a consequential amendment to the Gaming No. 2 Act 1997. Clause 194 makes consequential amendments to the Health Services Act 1988. Clause 195 makes consequential amendments to the Juries Act 2000. Clause 196 makes consequential amendments to the Legal Practice Act 1996. Clause 197 makes consequential amendments to the Liquor Control Reform Act 1998. Clause 198 makes consequential amendments to the Local Government Act 1989. 23

 


 

Clause 199 makes a consequential amendment to the Magistrates' Court Act 1989. Clause 200 makes consequential amendments to the Murray Valley Citrus Marketing Act 1989. Clause 201 makes a consequential amendment to the Ombudsman Act 1973. Clause 202 makes a consequential amendment to the Shop Trading Reform Act 1996. Clause 203 makes consequential amendments to the Victorian Institute of Teaching Act 2001. Clause 204 makes consequential amendments to the Vital State Projects Act 1976. Clause 205 makes a consequential amendment to the Water Act 1989. PART 12--ELECTION EXPENDITURE Division 1--Preliminary Clause 206 sets out the definitions of terms used in Part 12 of the Bill. Clause 207 provides that for the purposes of this Part, the campaign committee of a candidate endorsed by a registered political party is to be treated as the party. Division 2--Election Expenditure Clause 208 requires a statement in relation to election expenditure be given to the Commission in order to obtain public funding. Clause 209 provides that statements to the Commission to obtain public funding must be accompanied by a certificate of an auditor. Clause 210 sets out the powers of the Commission to request further information from an auditor, party or candidate about the statement or certificate lodged to obtain public funding. Clause 211 provides that $1.20 is payable for each first preference vote in an election. However, the candidate must have obtained at least 4% of the total number of first preference votes. 24

 


 

Clause 212 provides that payment of public funding is conditional on the giving of a statement of electoral expenditure to the Commission. Clause 213 provides that a payment may be made despite the death of a candidate. Clause 214 sets out the formula for indexation of amounts paid according to the Consumer Price Index. Clause 215 provides that amounts payable under this Part are payable out of the Consolidated Fund. Division 3--Capping of Political Donations Clause 216 provides that it is unlawful for the holder of a relevant licence as defined in clause 206 to make political donations to a registered political party during a financial year, the total value of which exceeds $50 000. For the purposes of calculating the total donations made by a relevant licence holder that is a company, donations made by another company related to the licence holder are to be included. Clause 217 provides that if the holder of a relevant licence contravenes the above clause, the amount by which the donations to a registered political party exceed $50 000 is forfeited to the State. Division 4--Miscellaneous Clause 218 provides for offences relating to misleading statements made for the purposes of obtaining public funding. Clause 219 provides that actions to recover amounts due to the State may be brought by the Commission. Clause 220 provides that records relating to statements to obtain public funding must be kept for at least 3 years after the election. Clause 221 provides for the Commission or the person who has lodged a statement to correct errors or omissions. Clause 222 provides that a registered political party must give the Commission a copy of the party's annual return of amounts received that is provided to the Australian Electoral Commission under the Commonwealth Electoral Act 1918. 25

 


 

Division 5--Repeals Clause 223 repeals sections and Schedules of The Constitution Act Amendment Act 1958 relating to candidates' election expenses. SCHEDULES Schedule 1 sets out the form of a writ for an election. Schedule 2 sets out the form of a ballot-paper for an election. 26

 


 

 


[Index] [Search] [Download] [Bill] [Help]