Electoral Legislation Amendment (Contingency Measures) Bill 2021 [2021] AUSStaCSBSD 234 (24 November 2021)

• Electoral Legislation Amendment (Contingency Measures) Bill 2021
• Henry VIII clause – modification of primary legislation by delegated legislation9
• Broad discretionary power
• Significant matters in delegated legislation11

---

Electoral Legislation Amendment (Contingency Measures) Bill 2021

Purpose	This bill seeks to amend the Commonwealth Electoral Act 1918 to enable the Electoral Commissioner to modify the operation of certain aspects of the conduct of elections when a Commonwealth emergency law is in force. These amendments implement recommendations from the Joint Standing Committee on Electoral Matters' Report of the inquiry on the future conduct of elections operating during times of emergency situations.
Portfolio	Special Minister of State
Introduced	House of Representatives on 28 October 2021

Henry VIII clause – modification of primary legislation by delegated legislation^[9]

1.22 Item 1 of Schedule 1 to the bill seeks to insert proposed section 396 into the Commonwealth Electoral Act 1918 (the Act). Proposed subsection 396(1) provides that the section will apply if an emergency is declared under a Commonwealth emergency law and the Electoral Commissioner is satisfied on reasonable grounds that the emergency to which the declaration relates would interfere with the due conduct of an election in a geographical area to which the declaration applies. Proposed subsection 396(2) provides that if the Electoral Commissioner is satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of the election in the emergency area, the Electoral Commissioner may, by legislative instrument, modify the operation of the Act in certain circumstances, including expanding the grounds on which a person may apply for a postal or pre-poll vote, extending the pre-poll voting period, and amending the number of scrutineers a group of candidates is entitled to have at a counting centre. Additionally, proposed subsection 396(3) provides that the Electoral Commissioner may, by legislative instrument, modify the Act to provide that persons may travel or conduct activities for the election (such as supplying electoral matter to electors) despite a prescribed kind of Commonwealth, state or territory law.

1.23 A provision that enables delegated legislation to amend primary legislation is known as a Henry VIII clause. There are significant scrutiny concerns with enabling delegated legislation to override the operation of legislation which has been passed by Parliament as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the executive. As such, the committee expects a sound justification for the use of a Henry VIII clause to be provided in the explanatory memorandum. In relation to proposed subsection 396(3), the explanatory memorandum states:

Voting, as both a constitutional right and a legislated duty, is fundamental to the concept of Australian citizenship. Subsection 396(3) is designed to ensure core activities that occur as part of in-person voting, such as canvassing for votes are protected, and allow elections to occur as closely as possible to their ordinary conduct, as they should.
This will enable the AEC to conduct an election safely by minimising the risk of harm to electors, employees and contractors when a Commonwealth emergency law is in force, whilst maintaining transparency of the electoral process. If the Commissioner permits such activity under the Act, travel for purposes of that activity is to be permitted by the Commissioner.^[10]

1.24 The committee also notes the safeguards in place in relation to the making of a legislative instrument under proposed section 396, including a requirement that the Electoral Commissioner notify the Prime Minister and the Leader of the Opposition and publish the instrument on the Electoral Commission's website. The committee further notes that the instrument will be time limited so that it sunsets at the earlier of the time the relevant emergency declaration is revoked or when the writs for the election to which the instrument relates are returned.

1.25 In light of the explanation provided in the explanatory memorandum for the inclusion of the Henry VIII clause, and noting the legislative safeguards provided, the committee reiterates its general scrutiny concerns regarding provisions which enable the use of delegated legislation to amend the operation of primary legislation, and leaves the appropriateness of the proposed power to modify electoral law by delegated legislation to the Senate as a whole.

Broad discretionary power
Significant matters in delegated legislation^[11]

1.26 As outlined above, proposed subsection 396(1) provides that the proposed power to modify electoral law will apply if an emergency is declared under a Commonwealth emergency law and the Electoral Commissioner is satisfied on reasonable grounds that the emergency to which the declaration relates would interfere with the due conduct of an election in a geographical area to which the declaration applies. Proposed subsection 396(8) sets out the relevant Commonwealth emergency laws, including the Biosecurity Act 2015 and the National Emergency Declaration Act 2020. Proposed subsection 396(9) provides that the minister may, by legislative instrument, specify additional laws for the definition of Commonwealth emergency laws.

1.27 The committee's consistent scrutiny view is that significant matters, such as the legislation that is a Commonwealth emergency law, should be included in the primary legislation unless a sound justification is provided for the use of delegated legislation. In this instance, the explanatory memorandum contains no justification as to why the list of relevant legislation in proposed subsection 396(8) can be expanded by delegated legislation.

1.28 The committee also considers that the provision provides the minister with a broad discretionary power in circumstances where there is no guidance on the face of the primary legislation in relation to the circumstances where the power can be exercised. The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. Noting the significant nature of the power to modify electoral law in proposed section 396, the committee considers that any additions to the definition of Commonwealth emergency law should be contained in primary legislation or at least high-level guidance should be included as to when additional legislation can be specified by legislative instrument.

1.29 The committee requests the minister's more detailed advice as to:

• why it is considered necessary and appropriate to provide the minister with a broad discretionary power to add legislation to the definition of Commonwealth emergency law by delegated legislation; and

• whether the bill can be amended to provide at least high-level guidance on the face of the bill as to the circumstances when the power in proposed subsection 396(9) should be exercised.

---

[9] Schedule 1, item 1, proposed section 396. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

[10] Explanatory memorandum, p. 9.

[11] Schedule 1, item 1, proposed subsections 396(8) and (9). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).