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Electoral and Referendum Amendment (Provisional Voting) Bill 2011

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7072

2010-2011

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Electoral and Referendum Amendment (Provisional Voting) Bill 2011

 

 

 

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

[consequential - misleading or deceptive conduct]

(2)     Clause 1, page 1 (line 7), after “ Voting ”, insert “ and Other Measures ”.

[consequential - misleading or deceptive conduct]

(3)     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.

[misleading or deceptive conduct]