Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 199 (1 September 2021)

• Chapter 2
• Commentary on ministerial responses
• Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021
• Broad discretionary power1

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Chapter 2

Commentary on ministerial responses

This chapter considers the responses of ministers to matters previously raised by the committee.

Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021

Purpose	This bill seeks to amend the Commonwealth Electoral Act 1918 (the Act) to enable the Electoral Commissioner or their delegate to declare a person to be a ‘designated elector’, on the basis of a reasonable suspicion that the elector has voted more than once in the same election. The bill also seeks to amend the penalty for the offence of interference with political liberty in section 327 of the Act.
Portfolio	Finance
Introduced	House of Representatives on 12 August 2021
Bill status	Passed both Houses

Broad discretionary power^[1]

2.1 In Scrutiny Digest 13 of 2021 the committee requested the assistant minister's advice as to whether the bill can be amended to include at least high-level guidance on the factors the Electoral Commissioner may take into account when determining that an elector should be declared a 'designated elector'.^[2]

Assistant Minister's response^[3]

2.2 The assistant minister advised:

In relation to proposed section 202AH into the Commonwealth Electoral Act 1918 (the Electoral Act), I note the Committee's comments about the provision to allow the Electoral Commissioner to declare an elector as a 'designated elector' if the Electoral Commissioner reasonably suspects that the elector has voted more than once in an election.
I note the explanatory memorandum explains that:
A reasonable suspicion can be determined by any means available to the Electoral Commissioner. For example, this may include consideration of records of certified-lists, which contain multiple-marks recorded against an elector's name as having voted more than once in a single election.
Proposed sections 202AJ and 202AK also set out the conditions and procedures for the review of a decision to declare an elector as a designated elector.
I am satisfied this provides sufficient guidance as to the appropriate exercise of the power to declare a person a designated elector.

Committee comment

2.3 The committee thanks the assistant minister for this response and for providing it to the committee in a timely manner. The committee notes the assistant minister's advice that sufficient guidance as to the appropriate exercise of the power to declare a person a 'designated elector' is set out in the explanatory memorandum. The assistant minister also advised that review of a decision to declare a person a 'designated elector' is provided for under proposed sections 202AJ and 202AK of the Commonwealth Electoral Act 1918.

2.4 While the committee acknowledges this advice, the committee reiterates that the bill provides no guidance on its face as to what considerations the Electoral Commissioner may take into account in forming a reasonable suspicion that an elector has voted more than once in an election and subsequently making a decision to declare an elector as a 'designated elector'.

2.5 The committee remains of the view that the bill provides the Electoral Commissioner with a broad discretionary power to declare an elector a 'designated elector'. However, in light of the fact that this bill has already passed both Houses of the Parliament and noting that both internal and external merits review is available, the committee makes no further comment on this matter.

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[1] Schedule 1, item 10, proposed section 202AH. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2021, pp. 8-9.

[3] The minister responded to the committee's comments in a letter dated 26 August 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 14 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.