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Part 3—Application of the law in relation to the plebiscite

Part 3 Application of the law in relation to the plebiscite

Division 1 Application of the Referendum Act

Subdivision A General

9   Application of the Referendum Act

                   The Referendum Act applies in relation to the plebiscite with the modifications set out in this Division.

10   References to referendum

             (1)  The Referendum Act applies (subject to subsection (2)) as if references in that Act to referendum or referendums included references to the plebiscite.

Note:          There are many ways “referendum” is referred to in the Referendum Act. These include “a referendum”, “the referendum”, “each referendum” or “a particular referendum”.

             (2)  Subsection (1) does not apply in relation to:

                     (a)  the definitions of referendum and referendum period in subsection 3(1) of that Act, and references to referendum period in that Act; or

                     (b)  the reference to last referendum in paragraph 16(2)(b) of that Act; or

                     (c)  the definition of referendum in subsection 62B(6) of that Act; or

                     (d)  the second reference to referendum in section 143 of that Act; or

                     (e)  section 11 of that Act; or

                      (f)  section 145 of that Act; or

                     (g)  Schedule 2 to that Act; or

                     (h)  paragraph 13(c) of Schedule 4 of that Act.

Note:          The definition of referendum period in subsection 3(1) of that Act is dealt with in section 13 of this Act.

11   References to proposed law

             (1)  The Referendum Act applies as if references in that Act to:

                     (a)  proposed law for the alteration of the Constitution; or

                     (b)  proposed law;

included references to the plebiscite proposal.

             (2)  Subsection (1) does not apply in relation to section 11 of that Act.

12   References to the Referendum Act, the Referendum Regulation or provisions of the Referendum Act

                   The Referendum Act applies as if references in that Act to:

                     (a)  that Act; or

                     (b)  a provision of that Act; or

                     (c)  the Referendum Regulation;

included references to that Act or provision, or that Regulation, as it applies in relation to the plebiscite.

Note:          For example, a reference in section 116 of the Referendum Act to the performance of functions or the exercise of powers under that Act is taken to include a reference to the performance of functions or the exercise of powers under that Act in relation to the plebiscite.

13   Meaning of referendum period

                   The Referendum Act applies as if the definition of referendum period in subsection 3(1) of that Act were replaced with the following definition:

referendum period , in relation to the plebiscite, means the period:

                     (a)  commencing at the start of the day the Plebiscite (Future Migration Level) Act 2018 commences; and

                     (b)  ending at the latest time on the voting day for the plebiscite at which an elector in Australia could enter a polling booth for the purpose of voting at the plebiscite.

Subdivision B Holding the plebiscite

14   Writ and forms for the plebiscite

             (1)  The Referendum Act applies as if subsection 8(1) of that Act were replaced with the following subsection:

             (1)  A writ issued under section 7 may be in accordance with Form A in Schedule 1, shall be signed by the Governor-General and shall:

                     (a)  be issued on the same day that writs are issued for the next general election of the members of the House of Representatives; and

                     (b)  specify that:

                              (i)  the voting day; and

                             (ii)  the day for the close of the Rolls

                            are the same days as the days fixed in relation to the next general election of the members of the House of Representatives.

Note:          Section 32 of the Constitution and section 154 of the Commonwealth Electoral Act 1918 set out details in relation to the issue of writs for general elections of members of the House of Representatives.

             (2)  The Referendum Act applies as if:

                     (a)  subsection 8(2) and paragraph 12(a) of that Act were omitted; and

                     (b)  the reference to “and a copy of the proposed law or of the statement (if any) attached to the writ” in paragraphs 12(b) and 13(b) of that Act were omitted; and

                     (c)  paragraph 14(1)(a) and subparagraphs 14(1)(b)(ii) and (iii) of that Act were omitted.

             (3)  The Referendum Act applies as if Forms A and B in Schedule 1 to that Act were replaced with Forms A and B in Schedule 1 to this Act.

Subdivision C Determining the result of the plebiscite

15   Appointment of scrutineers for voting

                   The Referendum Act applies as if section 27 of that Act were replaced with the following section:

27  Appointment of scrutineers for voting

             (1)  A member of the Parliament of the Commonwealth may appoint persons to act as scrutineers during voting at the plebiscite at each place in the member’s State or Territory where voting is being conducted.

             (2)  The Special Minister of State may, by legislative instrument, provide in relation to scrutineers appointed under subsection (1), including in relation to the number or numbers of scrutineers allowed at a polling booth.

             (3)  In this section:

State or Territory of a member of the Parliament of the Commonwealth means:

                     (a)  for a member of the House of Representatives—the State or Territory in which the Division for which the member is elected is located; or

                     (b)  for a Senator for a State or Territory—the State or Territory.

16   Appointment of scrutineers for pre-poll voting

                   The Referendum Act applies as if section 73CA of that Act were replaced with the following section:

73CA  Appointment of scrutineers for pre-poll voting

             (1)  A member of the Parliament of the Commonwealth may appoint persons to act as scrutineers during voting at each pre-poll voting office for the plebiscite in the member’s State or Territory.

             (2)  The Special Minister of State may, by legislative instrument, provide in relation to scrutineers appointed under subsection (1), including in relation to the number or numbers of scrutineers allowed at a pre-poll voting office.

             (3)  In this section:

State or Territory of a member of the Parliament of the Commonwealth means:

                     (a)  for a member of the House of Representatives—the State or Territory in which the Division for which the member is elected is located; or

                     (b)  for a Senator for a State or Territory—the State or Territory.

17   Ascertainment of result of plebiscite

                   The Referendum Act applies as if section 89 of that Act were replaced with the following section:

89  Ascertainment of result of plebiscite

             (1)  The result of the plebiscite is to be ascertained by scrutiny.

             (2)  A member of the Parliament of the Commonwealth may appoint persons to act as scrutineers during the scrutiny at each counting centre in the member’s State or Territory.

             (3)  The Special Minister of State may, by legislative instrument, provide in relation to scrutineers appointed under subsection (2), including in relation to the number or numbers of scrutineers allowed at a counting centre.

             (4)  In this section:

counting centre means any premises at which a scrutiny or counting of ballot-papers for the plebiscite is to be, or is being, conducted.

State or Territory of a member of the Parliament of the Commonwealth means:

                     (a)  for a member of the House of Representatives—the State or Territory in which the Division for which the member is elected is located; or

                     (b)  for a Senator for a State or Territory—the State or Territory.

18   Recount

                   The Referendum Act applies as if subsection 95(2) of that Act were replaced with the following subsection:

             (2)  The Electoral Commissioner may, if requested to do so by a member of the Parliament of the Commonwealth, or of the Electoral Commissioner’s own motion, direct a recount of any ballot-papers.

19   Return of the writ

                   The Referendum Act applies as if subsection 98(1) of that Act were replaced with the following subsection, and section 99 were omitted:

             (1)  The Electoral Commissioner must, immediately after receiving the statements sent under section 97:

                     (a)  certify in relation to the whole Commonwealth:

                              (i)  the number of votes given in favour of the plebiscite proposal; and

                             (ii)  the number of votes given not in favour of the plebiscite proposal; and

                            (iii)  the number of ballot-papers rejected as informal;

                            and attach the certificate to the original writ; and

                     (b)  return the writ and the certificate to the Governor-General.

20   Disputing validity of submission or return

                   The Referendum Act applies as if section 100 of that Act were replaced with the following section:

100  Disputing validity of submission or return

                   The validity of the plebiscite, or of any return or statement showing the voting at the plebiscite, may be disputed by a member of the Parliament of the Commonwealth by petition addressed to the High Court.

21   Requirements for petition by member of Parliament

                   The Referendum Act applies as if paragraph 101(1)(c) of that Act required a petition by a member of the Parliament of the Commonwealth under section 100 of that Act (as that section applies because of section 20 of this Act) to be signed by the member.

22   Notice of petition and joinder of parties

                   The Referendum Act applies as if sections 105 and 106 of that Act were replaced with the following sections:

105  Notice of petition

                   If a petition is filed under section 100 by a member of the Parliament of the Commonwealth, the member must notify the Electoral Commission of the filing of the petition.

106  Joinder of parties

             (1)  If a petition is filed under section 100 or 102, the High Court may, on the application of the Electoral Commission or a member of the Parliament of the Commonwealth, order the applicant to be joined as a party petitioning or responding (as the case may be).

             (2)  This section does not limit the power of the High Court to join any other person as a party petitioning or responding (as the case may be).

Division 2 Application of the Referendum Regulation

23   Application of the Referendum Regulation

                   The Referendum Regulation applies in relation to the plebiscite with the modifications set out in:

                     (a)  this Division; and

                     (b)  any regulations made for the purposes of subsection 33(2).

24   References to referendum

             (1)  The Referendum Regulation applies as if references in that Regulation to referendum (except references to the Referendum Act) included references to the plebiscite.

             (2)  Subsection (1) does not apply in relation to the definition of referendum in section 5 of the Referendum Regulation.

25   References to the Referendum Act or provisions of the Referendum Act

                   The Referendum Regulation applies as if references in that Regulation to the Referendum Act, or a provision of the Referendum Act, included references to that Act or provision as it applies in relation to the plebiscite.

Division 3 Application of other laws

Subdivision A General

26   Application of other laws

             (1)  A provision of an Act applies in relation to the plebiscite with the modifications set out in this Division.

             (2)  An instrument made under an Act, or a provision of an instrument made under an Act, applies in relation to the plebiscite with the modifications set out in:

                     (a)  this Division; and

                     (b)  any regulations made for the purposes of subsection 33(2).

27   References to referendum

                   The following provisions apply as if references in those provisions to referendum or referendums included references to the plebiscite:

                     (a)  paragraph (d) of the definition of election period , and paragraph (b) of the definition of required period , in clause 1 of Schedule 2 to the Broadcasting Services Act 1992 ;

                     (b)  the following provisions of the Commonwealth Electoral Act 1918 :

                              (i)  the definition of electoral matters in section 5;

                             (ii)  subparagraph 35(1)(a)(i);

                            (iii)  paragraphs 91A(1A)(a), (2)(a), (2A)(a) and (2B)(a) and paragraphs 189B(4)(a) and (5)(a);

                            (iv)  subsections 202A(4) and (5) and 203(7);

                             (v)  clause 22 of Schedule 3;

                     (c)  subparagraph 80.2(3)(a)(ii) and subsection 80.2(4) of the Criminal Code ;

                     (d)  paragraphs 7C(1)(b) and (4)(b), and subparagraph 7C(2)(b)(ii), of the Privacy Act 1988 .

Note:          Further modifications are made to the Broadcasting Services Act 1992 in section 30.

28   References to the Referendum Act

                   The following provisions apply as if references in those provisions to the Referendum Act or a provision (the Referendum Act provision ) of the Referendum Act included references to the Referendum Act or the Referendum Act provision as it applies in relation to the plebiscite:

                     (a)  item 41 of the table in Schedule 1 to the Age Discrimination Act 2004 ;

                     (b)  paragraph 105(4)(b) of the Commonwealth Electoral Act 1918 ;

                     (c)  the Schedule to the Jurisdiction of Courts (Cross-Vesting) Act 1987 ;

                     (d)  item 2A of the table in subsection 355-65(8) in Schedule 1 to the Taxation Administration Act 1953 ;

                     (e)  item 120 of the table in Schedule 1 to the Electronic Transactions Regulations 2000 .

Subdivision B Broadcasting

29   Identification of certain political matter and records of matter broadcast

             (1)  The following provisions apply, subject to subsection (3), as if references in those provisions to political matter included references to plebiscite matter:

                     (a)  clauses 1 and 4 of Schedule 2, and subclause 24(4) of Schedule 6, to the Broadcasting Services Act 1992 ;

                     (b)  section 70A of the Special Broadcasting Service Act 1991 .

             (2)  The following provisions apply, subject to subsection (3), as if references in those provisions to political subject included references to plebiscite matter:

                     (a)  clause 5 of Schedule 2 to the Broadcasting Services Act 1992 ;

                     (b)  section 70B of the Special Broadcasting Service Act 1991 .

             (3)  The obligations in subclauses 4(2) and (3) and clause 5 of Schedule 2 to the Broadcasting Services Act 1992 , and subsections 70A(2) and (3) and section 70B of the Special Broadcasting Service Act 1991 , apply in relation to plebiscite matter only if the matter is broadcast during the plebiscite period.

No requirement to lodge annual return

             (4)  A person is not required to provide a return for a financial year under section 314AEB of the Commonwealth Electoral Act 1918 merely because the person incurred expenditure for the purposes of broadcasting plebiscite matter, in relation to which particulars were required to be announced under subclause 4(2) of Schedule 2 to the Broadcasting Services Act 1992 (see subparagraph 314AEB(1)(a)(iv) of the Commonwealth Electoral Act 1918 ).

30   Obligations on broadcasters in relation to plebiscite matter

Requirement to give a reasonable opportunity

             (1)  Clause 3 of Schedule 2 to the Broadcasting Services Act 1992 applies as if subclause 3(2) of that Schedule required a broadcaster that, during the election period, broadcasts plebiscite matter that is in favour of the plebiscite proposal to give a reasonable opportunity to a representative of an organisation that is not in favour of the plebiscite proposal to broadcast plebiscite matter during that period, and vice versa.

Note:          The definition of election period in clause 1 of Schedule 2 to the Broadcasting Services Act 1992 is modified by paragraph 27(a) of this Act.

Limitation on broadcasting during blackout period

             (2)  Clause 3A of Schedule 2 to the Broadcasting Services Act 1992 applies as if that clause prohibited a broadcaster from broadcasting any advertisement that contains plebiscite matter during the period:

                     (a)  commencing at the end of the Wednesday before the polling day for the plebiscite; and

                     (b)  ending at the close of the poll on that polling day.

References to clauses 3 and 3A of Schedule 2

             (3)  Paragraphs 7(1)(j), 8(1)(i), 9(1)(i), 10(1)(i) and 11(1)(d) of Schedule 2, and paragraph 24(1)(a) and subclause 24(4) of Schedule 6, to the Broadcasting Services Act 1992 apply as if references in those provisions to clauses 3 and 3A of Schedule 2 to that Act included references to those clauses as they apply in relation to the plebiscite.

31   SBS to give a reasonable opportunity to broadcast plebiscite matter

                   The Special Broadcasting Service Act 1991 applies as if the following section were inserted after section 70B of that Act:

70BA  SBS to give a reasonable opportunity to broadcast plebiscite matter

             (1)  If, during the plebiscite period, SBS broadcasts plebiscite matter that is in favour of the plebiscite proposal, SBS must give a reasonable opportunity to a representative of an organisation that is not in favour of the plebiscite proposal to broadcast plebiscite matter during that period, and vice versa.

             (2)  This section does not require SBS to broadcast any matter free of charge.

32   SBS not to broadcast advertisements containing plebiscite matter during the blackout period

                   Section 70C of the Special Broadcasting Service Act 1991 applies as if that section prohibited SBS from broadcasting any advertisement that contains plebiscite matter during the period:

                     (a)  commencing at the end of the Wednesday before the polling day for the plebiscite; and

                     (b)  ending at the close of the poll on that polling day.