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ELECTORAL AND REFERENDUM AMENDMENT (PROVISIONAL VOTING) BILL 2011

Order of the day read for the adjourned debate on the motion of the Minister for Tertiary Education, Skills, Jobs and Workplace Relations (Senator Evans)—That this bill be now read a second time.

Debate resumed.

Question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the bill.

In the committee

Bill taken as a whole by leave.

On the motion of Senator Xenophon the following amendments, taken together by leave, were agreed to:

 Schedule 1, item 2, page 3 (line 18), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the election, to require the elector to provide evidence of his or her identity by the first Friday following the polling day for that election.".

 Schedule 1, item 5, page 4 (line 9), at the end of paragraph 3A, add "If, after so checking the signature, the DRO is not satisfied that the signature on the envelope is the signature of the elector, the DRO must make all reasonable attempts to contact the elector within 3 days after the referendum, to require the elector to provide evidence of his or her identity by the first Friday following the voting day for that referendum.".

Senator Xenophon moved the following amendments together by leave:

 Title, page 1 (line 2), omit "related", substitute "other".

 Clause 1, page 1 (line 7), after "Voting", insert "and Other Measures".


 Page 5 (after line 5), at the end of the bill, add:

  

Schedule 2—Amendments relating to misleading or deceptive conduct

 

Commonwealth Electoral Act 1918

 1 After section 329

  Insert:

 

329A Misleading or deceptive conduct

  (1) A person commits an offence if:

 (a) the person either:

 (i) engages in conduct; or

 (ii) authorises another person to engage in conduct; and

 (b) that conduct occurs during the relevant period in relation to an election under this Act; and

 (c) that conduct is likely to mislead or deceive an elector in relation to the casting of a vote.

    Penalty:

 (a) if the offender is a natural person—$1,000 or 6 months' imprisonment; or

 (b) if the offender is a body corporate—$5,000.

  (2) In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote.

   Note: A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

  (3) If the Electoral Commissioner is satisfied that, during the relevant period in relation to an election under this Act, a person is engaging in, or has engaged in, conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the Electoral Commissioner may request the person to desist from that conduct.

  (4) In proceedings for an offence under this section, the court may take into account a person's response to a request under subsection (3) in assessing any penalty to which the person may be liable.

  (5) If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote, the court may order the person to desist from that conduct.

   

Referendum (Machinery Provisions) Act 1984

 2 After section 122

  Insert:

 

122A Misleading or deceptive conduct

  (1) A person commits an offence if:

 (a) the person either:

 (i) engages in conduct; or

 (ii) authorises another person to engage in conduct; and


 (b) that conduct occurs during the referendum period in relation to a referendum under this Act; and

 (c) that conduct is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum.

    Penalty:

 (a) if the offender is a natural person—$1,000 or 6 months' imprisonment; or

 (b) if the offender is a body corporate—$5,000.

  (2) In a prosecution of a person under subsection (1), it is a defence if the person proves that he or she did not know, and could not reasonably be expected to have known, that the conduct was likely to mislead or deceive an elector in relation to the casting of a vote at the referendum.

   Note: A defendant bears a legal burden in relation to the defence in subsection (2) (see section 13.4 of the Criminal Code).

  (3) If the Electoral Commissioner is satisfied that, during the referendum period in relation to a referendum under this Act, a person is engaging in, or has engaged in, conduct that is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum, the Electoral Commissioner may request the person to desist from that conduct.

  (4) In proceedings for an offence under this section, the court may take into account a person's response to a request under subsection (3) in assessing any penalty to which the person may be liable.

  (5) If the court is satisfied, in proceedings for an offence under this section, that a person has engaged in conduct that is likely to mislead or deceive an elector in relation to the casting of a vote at the referendum, the court may order the person to desist from that conduct.

 3 Application of amendments

  (1) The amendment made by item 1 of this Schedule applies in relation to elections the writs for which are issued on or after the commencement of this Schedule.

 (2) The amendment made by item 2 of this Schedule applies in relation to referendums the writs for which are issued on or after the commencement of this Schedule.

Debate ensued.

Question—That the amendments be agreed to—put and negatived.

Bill, as amended, agreed to.

Bill to be reported with amendments.

The Acting Deputy President (Senator Hutchins) resumed the chair and the Temporary Chair of Committees reported accordingly.

On the motion of the Parliamentary Secretary for Defence (Senator Feeney) the report from the committee was adopted.

Senator Feeney moved—That this bill be now read a third time.


Question put.

The Senate divided—

AYES, 33

Senators—

Bilyk

Bishop

Brown, Bob

Brown, Carol

Cameron

Carr

Collins

Conroy

Crossin

Farrell

Faulkner

Feeney

Fielding

Forshaw

Hanson-Young

Hogg

Hurley

Hutchins

Ludlam

Ludwig

Lundy

Marshall

McEwen (Teller)

McLucas

Milne

Moore

O'Brien

Polley

Pratt

Siewert

Sterle

Wortley

Xenophon

NOES, 31

Senators—

Adams

Back

Bernardi

Birmingham

Boswell

Boyce

Bushby

Cash

Colbeck

Coonan

Ferguson

Fierravanti-Wells

Fifield

Fisher

Heffernan

Humphries

Johnston

Joyce

Kroger

Macdonald

Mason

McGauran

Minchin

Nash

Parry

Payne

Ryan

Scullion

Troeth

Trood

Williams (Teller)

Question agreed to.

Bill read a third time.