Referendum (Machinery Provisions) Amendment Bill 2022 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 42 (8 March 2023)

• Referendum (Machinery Provisions) Amendment Bill 2022
• Reversal of the evidential burden of proof154
• Henry VIII clause – modification of primary legislation by delegated legislation157
• Broad discretionary power Significant matters in delegated legislation160
• Broad discretionary power163

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Referendum (Machinery Provisions) Amendment Bill 2022

Purpose	This bill seeks to amend the Referendum (Machinery Provisions) Act 1984 to ensure a consistent voter experience across elections and referendums.
Portfolio	Finance
Introduced	House of Representatives on 1 December 2022
Bill status	Before the House of Representatives

Reversal of the evidential burden of proof^[154]

2.154 Item 2 of Schedule 3 to the bill seeks to amend the Referendum (Machinery Provisions) Act 1984 (Referendum Act) to insert proposed section 3AA. Proposed subsection 3AA(1) defines a referendum matter as a matter communicated or intended to be communicated for the dominant purpose of influencing the way electors vote at a referendum. Proposed subsection 3AA(4) makes it an offence for the communication or intended communication of a referendum matter. Proposed subsection 3AA(6) provides an exception (offence-specific defence) to this offence, stating that the offence does not apply if the matter is not a referendum matter.

2.155 A defendant bears an evidential burden in relation to this defence.

2.156 In Scrutiny Digest 1 of 2023 the committee requested the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance.

2.157 The committee suggested that it may be appropriate for the bill to be amended to provide that these matters are specified as elements of the offence. The committee also requested the minister's advice in relation to this matter.^[155]

Minister's response^[156]

2.158 The minister reiterated the advice provided at paragraph 73 of the explanatory memorandum that the relevant matters would be peculiarly within the knowledge of the defendant and would be significantly more difficult and costly for the prosecution to prove than for the defendant to establish. On this basis, the minister considered that it was necessary and appropriate to reverse the evidential burden of proof in this instance.

Committee comment

2.159 The committee thanks the minister for this response.

2.160 However, the committee does not consider that this response has adequately addressed its concerns. The committee notes that it had already considered the explanation in the explanatory memorandum and concluded that it did not provide a sufficient justification for reversing the evidential burden of proof. Restating the advice provided in the explanatory memorandum is therefore not sufficient.

2.161 Reversals of the evidential burden of proof are generally not appropriate unless the matters that must be adduced are peculiarly within the knowledge of the defendant. The committee provided several examples of matters which do not appear to be peculiarly within the knowledge of the defendant, however the minister's response did not address these examples.

2.162 The minister concluded that the approach taken in the bill is consistent with the guidance provided in the Guide to Framing Commonwealth Offences. However, the minister has not provided any advice to demonstrate why this is the case.

2.163 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to the matters set out under proposed subsection 3AA(4) of the Referendum (Machinery Provisions) Act 1984.

Henry VIII clause – modification of primary legislation by delegated legislation^[157]

2.164 Item 9 of Schedule 6 to the bill seeks to insert proposed section 144A into the Referendum Act. Proposed subsection 144A(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 a referendum in a geographical area to which the declaration applies.Under proposed subsection 144A(2) the Electoral Commissioner may, by legislative instrument, modify the operation of the Referendum Act, or specified provisions of the Referendum Act, if satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of the referendum in the emergency area. Proposed subsection 144A(3) provides that the Electoral Commissioner may, by legislative instrument, modify the operation of the Referendum Act to provide that persons may travel and conduct activities for the referendum despite a prescribed kind of Commonwealth, state or territory law.

2.165 In Scrutiny Digest 1 of 2023 the committee requested the minister's advice as to why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the Referendum Act.^[158]

Minister's response^[159]

2.166 The minister reiterated the advice provided in the explanatory memorandum. Namely, that the power to modify the operation of the Referendum Act by legislative instrument is necessary to enable the Australian Electoral Commission to conduct a referendum safely by minimising the risk of harm to voters, employees and contractors when a Commonwealth emergency law is in force, while maintaining transparency of the referendum process.

2.167 The minister also noted that the power to modify primary legislation is limited in several important respects, including that the Electoral Commissioner must notify in writing both the Prime Minister and the Leader of the Opposition of the Commissioner's intention to make such an instrument.

Committee comment

2.168 The committee thanks the minister for this response.

2.169 However, as noted above, re-stating the explanation provided in the explanatory memorandum is not sufficient where the committee has previously considered that explanation. Similarly, the committee had already considered the legislative limits on the modification power which have been noted by the minister and concluded that they, of themselves, were not sufficient to address the scrutiny concerns raised by the committee.

2.170 The committee therefore does not consider that the minister has adequately addressed the committee's concerns.

2.171 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing delegated legislation to modify the operation of the Referendum (Machinery Provisions) Act 1984.

2.172 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Broad discretionary power
Significant matters in delegated legislation^[160]

2.173 As outlined above, proposed section 144A 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 a referendum in a geographical area to which the declaration applies. Proposed subsection 144A(8) sets out the relevant Commonwealth emergency laws, including the Biosecurity Act 2015 and the National Emergency Declaration Act 2020. Proposed subsection 144A(9) provides that the minister may, by legislative instrument, specify additional laws for the definition of Commonwealth emergency laws.

2.174 In Scrutiny Digest 1 of 2023 the committee requested 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 144A(9) should be exercised.^[161]

Minister's response^[162]

2.175 The minister advised that the minister's power to specify a law is limited to specifying an existing Commonwealth law under which an emergency can be declared.

2.176 The use of delegated legislation by the minister under subsection 144A(9) would facilitate a timely response to unforeseen emergencies to assist the Electoral Commissioner in ensuring the safe and successful delivery of a referendum. It is necessary and appropriate that responses to unforeseen emergencies occur in a timely manner, particularly during the referendum period.

2.177 The minister also advised that amending the bill to provide high-level guidance as to the circumstances in which the power in subsection 144A(9) could be used is not appropriate due to the evolving and uncertain nature of emergencies.

Committee comment

2.178 The committee thanks the minister for this response.

2.179 However, the committee reiterates its scrutiny view that significant matters relating to the conduct of elections should be included in primary legislation, unless a sound justification is provided for the use of delegated legislation.

2.180 While the committee acknowledges the minister's advice in relation to the appropriateness of using delegated legislation, it remains unclear to the committee why at least high-level guidance as to when additional legislation can be specified by legislative instrument cannot be included in the primary legislation. For example, it is not clear why at least an inclusive list of considerations could not be provided to assist in interpreting the scope of terms used in the bill, rather than an exhaustive definition.

2.181 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the minister with a broad discretionary power to add legislation to the definition of 'Commonwealth emergency law' by delegated legislation.

2.182 The committee draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

Broad discretionary power^[163]

2.183 Item 2 of Schedule 5 to the bill seeks to insert proposed subsection 202AH(1) into the Commonwealth Electoral Act 1918 (the Electoral Act) to provide that the Electoral Commissioner may declare that an elector is a 'designated elector' if the Electoral Commissioner reasonably suspects that the elector has voted more than once in a referendum. Proposed section 46AA provides that a designated elector may only vote by declaration vote, which includes a postal vote, a pre-poll declaration vote, an absent vote, or a provisional vote but does not include an ordinary vote or an ordinary pre-poll vote.

2.184 In Scrutiny Digest 1 of 2023 the committee requested the minister's advice as to whether the bill can be amended to include at least high-level guidance as to the factors the Electoral Commissioner may take into account when determining that an elector should be declared a 'designated elector'.^[164]

Minister's response^[165]

2.185 The minister advised that the designation of an elector does not deprive an elector of their legal right to cast a vote because designated electors may vote by declaration vote, which includes a postal vote, a pre-poll declaration vote, an absent vote, or a provisional vote. This also does not affect an elector's ability to vote early or through mobile polling.

2.186 The minister also advised that it would not be appropriate to amend the bill to include a list of factors the Electoral Commissioner may consider when determining that an elector should be declared a 'designated elector' because doing so may limit or prejudice the Electoral Commissioner's ability to appropriately consider extenuating circumstances and other operational matters.

Committee comment

2.187 The committee thanks the minister for this response.

2.188 While the committee notes that the bill would not deprive a designated elector of their right to vote, the committee considers that any significant impact on the right to vote should be appropriately justified and subject to sufficient safeguards. In this case, the committee considers that the limit on a person's right to vote that may result from providing the Electoral Commissioner with a power to declare that an elector is a 'designated elector' is sufficiently justified within the bill's explanatory materials. However, the committee is concerned that this power is not subject to sufficient safeguards, noting that 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 a referendum.

2.189 The minister has advised that providing a list of considerations for the Electoral Commissioner to take into account may limit or prejudice the Electoral Commissioner's ability to appropriately consider extenuating circumstances and other operational matters. The committee does not consider that this is a convincing rationale for providing a broad discretionary power in relation to significant matters. The committee notes, for example, that the broad drafting of the Electoral Commissioner's power in fact allows a decision-maker to completely disregard 'operational matters', while an amendment could require, or suggest, consideration of such matters.

2.190 The explanatory memorandum for the bill notes that a reasonable suspicion may be informed by 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.^[166] It is unclear why these matters could not be included as considerations within the bill.

2.191 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the Electoral Commissioner with a broad discretionary power to declare that a person is a 'designated elector'.

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[154] Schedule 2, item 2, proposed subsection 3AA(6). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[155] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 38–39.

[156] The minister responded to the committee's comments in a letter dated 7 March 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[157] Schedule 6, item 9, proposed section 144A. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

[158] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 40–41.

[159] The minister responded to the committee's comments in a letter dated 7 March 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[160] Schedule 6, item 9, proposed subsection 144A(9). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii) and (iv).

[161] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 41–42.

[162] The minister responded to the committee's comments in a letter dated 7 March 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[163] Schedule 5, item 2, proposed subsection 202AH(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(ii).

[164] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2023 (8 February 2023) pp. 42–44.

[165] The minister responded to the committee's comments in a letter dated 7 March 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[166] Explanatory memorandum, p. 42.