Electoral and Referendum Regulation 2016 [F2016L00399] -Concluded matters [2016] AUSStaCSDLM 255 (12 October 2016)

Instrument	Electoral and Referendum Regulation 2016 [F2016L00399]
Purpose	Provides for an electronically assisted voting method for electors who are sight-impaired, provision of electoral roll information to prescribed Commonwealth agencies for specified purposes, and provision of electoral roll information to entities that have reporting obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006
Last day to disallow	13 October 2016
Authorising legislation	Commonwealth Electoral Act 1918; Referendum (Machinery Provisions) Act 1984
Department	Finance
Scrutiny principle	Standing Order 23(3)(b)
Previously reported in	Delegated legislation monitor 5 of 2016

Insufficient information regarding strict liability offences

The committee commented as follows:

Sections 23 and 24 of the regulation set out strict liability offences relating to the handling and scrutiny of ballot papers. These offences each carry a penalty of 5 penalty units.

Given the limiting nature and potential consequences for individuals of strict and vicarious liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences (particularly strict liability offences) in delegated legislation. The committee notes that in this case the ES provides no explanation of or justification for the framing of the offences.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Special Minister of State advised:

The Regulation was made to repeal and replace the Electoral and Referendum Regulations 1940 (the 1940 Regulation) which was due to sunset on 1 April 2016. The Regulation was based on the 1940 Regulation and no substantive changes were made. In particular, there were no changes to sections 23 and 24 (formerly regulations 50 and 51 of the 1940 Regulation) which were included in the Regulation as a result of the introduction of electronically assisted voting in 2007 (see Electoral and Referendum Amendment Regulations 2007 (No.3); Electoral and Referendum Legislation Amendment Act 2007).
I note that the provisions introduced in 2007 were modelled off the pre-poll voting regime in the Electoral Act and the Referendum (Machinery Provisions) Act 1984 (Referendum Act) and as a result the offence provisions set out in the Regulation are consistent with the offence provisions set out in section 200J of the Electoral Act and section 73H of the Referendum Act.
In addition to the harmonisation of offences across the electoral framework, it was considered important that the failure to follow the requirements for the scrutiny of ballot papers should be considered a serious offence which should be accompanied by a prescribed penalty commensurate to the offence. As such the electoral legislative framework provides that offences such as those set out in section 200J of the Electoral Act, section 73H of the Referendum Act and sections 23 and 24 of the Regulation are offences of strict liability.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes the minister's advice that the strict liability offences included in the regulation are identical to those included in the previous regulation and comparable to offence provisions set out in the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. However, the committee reiterates its expectation that, where an instrument makes provision for offences, the ES provide a full justification for the need, scope and framing of those offences. This is particularly so in cases of strict liability.

The committee further draws the minister's attention to the discussion of strict and absolute liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,^[1] as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

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^[1] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/ Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPowers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf (accessed 12 October 2016).