Referendum (Machinery Provisions) Amendment Bill 2022 [2023] AUSStaCSBSD 9 (8 February 2023)

• Referendum (Machinery Provisions) Amendment Bill 2022
• Reversal of the evidential burden of proof74
• Henry VIII clause – modification of primary legislation by delegated legislation80
• Broad discretionary power Significant matters in delegated legislation83

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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

Reversal of the evidential burden of proof^[74]

1.133 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.

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

1.135 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[75] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.136 The committee expects any such reversal of the evidential burden of proof to be justified. In this instance the explanatory memorandum states:

It is appropriate to place the burden of proof on the defendant in this context because it will be peculiarly within the knowledge of the defendant whether the communication or intended communication of the matter meets an exception as provided by new subsection 3AA(6). That is, the defendant has full knowledge as to whether they have completely met the criteria for the offence-specific defence, and may be able to provide evidence to this.^[76]

1.137 As alluded to in this explanation, the Guide to Framing Commonwealth Offences^[77] states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[78]

1.138 In this case, it is not apparent that several of the matters relevant to a proposed subsection 3AA(6) defence would be peculiarly within the defendant's knowledge. For example, it appears that whether the communication or intended communication of a referendum matter occurred in the House of Representatives or the Senate or whether the referendum matter forms part of the reporting of news are matters that the prosecution could readily ascertain. These matters therefore appear to be more appropriate to be included as elements of the offence.

1.139 The committee considers it is not appropriate to reverse the evidential burden of proof in relation to matters that are not peculiarly within the knowledge of the defendant. The committee therefore requests 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. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[79]

1.140 The committee suggests 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 requests the minister's advice in relation to this matter.

Henry VIII clause – modification of primary legislation by delegated legislation^[80]

1.141 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 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.

1.142 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 this instance, the explanatory memorandum provides no explanation, merely restating the effect of the provision.

1.143 The committee notes the safeguards in place in relation to the making of a legislative instrument under proposed section 144A, 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.

1.144 The committee previously raised scrutiny concerns in relation to a similar provision in the Electoral Legislation Amendment (Contingency Measures) Bill 2021 in Scrutiny Digest 17 of 2021.^[81] In that instance, the explanatory memorandum stated:

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.^[82]

1.145 It is unclear to the committee why this explanation has not been included in the explanatory memorandum for the bill.

1.146 In light of the above, the committee requests the minister's advice as to why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the Referendum (Machinery Provisions) Act 1984.

Broad discretionary power
Significant matters in delegated legislation^[83]

1.147 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.

1.148 The committee's consistent scrutiny view is that significant matters should be included in the primary legislation unless a sound justification is provided for the use of delegated legislation. The prescription of matters which fundamentally impact on a person's right to vote are one such matter. In this instance, the explanatory memorandum contains no justification as to why the list of relevant legislation in proposed subsection 144A(8) can be expanded by delegated legislation.

1.149 The committee also considers that the provision gives the minister 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 144A, the committee considers that any additions to the definition of Commonwealth emergency law should be contained in primary legislation or, at a minimum, that high-level guidance should be included as to when additional legislation can be specified by legislative instrument.

1.150 The committee previously raised scrutiny concerns in relation to a similar provision in the Electoral Legislation Amendment (Contingency Measures) Bill 2021 in Scrutiny Digest 17 of 2021.^[84] The then minister advised that there is often significant uncertainty during emergency situations, and that this uncertainty combined with the dissolution of Parliament shortly before an election, means it is necessary and appropriate to allow for the use of delegated legislation. The then minister also advised that further guidance is not required as to when the instrument-making power should be exercised, because such legislative instruments will be subject to parliamentary scrutiny.^[85]

1.151 It is unclear to the committee why this explanation has not been included in the explanatory memorandum for the bill. In addition, while acknowledging this explanation, it is 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.

1.152 Nothing the above, 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 144A(9) should be exercised.

Broad discretionary power^[86]

1.153 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.

1.154 The committee notes 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 and then making a decision to declare a person as a designated elector. As such, the committee considers that the bill provides the Electoral Commissioner with a broad discretionary power to declare an elector a designated elector. The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. In this instance, 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.^[87]

1.155 While noting this explanation, it is unclear to the committee why additional guidance, including the example set out in the explanatory memorandum, cannot be included on the face of the primary legislation. The committee considers that this would provide legislative guidance as to the appropriate exercise of the power to declare a person a designated elector. As a result, the committee considers that it may be appropriate to, at a minimum, amend the bill to include an inclusive list of considerations that the Electoral Commissioner may take into account when exercising the power set out at proposed section 202AH. The committee's scrutiny concerns in this instance are heightened noting that the power to declare that a person is a designated elector would restrict a person's voting options at an election.

1.156 The committee previously commented on section 202AH in relation to the Electoral Legislation Amendment (Electoral Offences and Preventing Multiple Voting) Bill 2021 (the 2021 bill) in its Scrutiny Digest 13 of 2021.^[88] In response to the committee's concerns in relation to the 2021 bill, the then assistant minister advised that sufficient guidance as to the appropriate exercise of the power to declare a person a 'designated elector' was set out in the explanatory memorandum. The then assistant minister further advised that review of a decision to declare a person a 'designated elector' is provided in proposed sections 202AJ and 202AK of the Commonwealth Electoral Act 1918.^[89]

1.157 The committee does not consider that sufficient guidance has been provided, noting the importance of section 202AH to a person's right to vote, and the fact 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.

1.158 The committee remains of the view that section 202AH of the Commonwealth Electoral Act 1918 provides the Electoral Commissioner with a broad discretionary power to declare an elector a 'designated elector'. Therefore, the committee requests 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'.

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[74] 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).

[75] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

[76] Explanatory memorandum, p. 20.

[77] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50–52.

[78] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[79] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp. 50–52.

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

[81] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021 (24 November 2021) pp. 9–10.

[82] Explanatory memorandum, p. 9.

[83] 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).

[84] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021 (24 November 2021) pp. 10–11.

[85] Senate Scrutiny of Bills Committee, Scrutiny Digest 1 of 2022 (4 February 2022) pp. 37–39.

[86] 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).

[87] Explanatory memorandum, p. 42.

[88] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 13 of 2021 (25 August 2021) pp. 8–9.

[89] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 14 of 2021 (1 September 2021) pp. 16–17.