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Electoral and Referendum Amendment Bill 1991



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House: Senate Portfolio: Administrative Services

Purpose The Bill will make a number of non-contentious amendments to electoral and referendum legislation. The main amendments relate to declarations of citizenship for candidates and the introduction of notices, as an alternative to court action, for people who fail to vote.

Background The Bill implements changes suggested by the Joint Standing Committee on Electoral Matters which released its report on the 1987 Federal election and the 1988 referendums in May 1989. It has been standard practice since 1983 for the Committee to examine the conduct of elections and to make recommendations as to how the system may be improved. The report on the 1987 election and 1988 referendums contains 57 recommendations, most of which are of a technical nature.

Amendments related to citizenship are the result of the `election' of Robert Wood to the Senate in 1987. Following the election it was discovered that Robert Wood was not an Australian citizen at the time he nominated, as required by the Commonwealth Electoral Act 1918 (the Principal Act). The matter was referred to the High Court, sitting as the Court of Disputed Returns, which found that Robert Wood was not entitled to nominate for the election and, as a result, his election was invalid. Senator Dunn replaced Robert Wood after a recount. The Committee noted that the current nomination form requires people to state their place of birth and whether they are Australian citizens, but that no further information was sought. The Committee examined the option of gaining the information from the Department of Immigration, Local Government and Ethnic Affairs, but concluded that deficiencies in their records and complications with privacy ruled out this option. It recommended that people supply information about how they became a citizen and, if applicable, details of their naturalisation. 1

As Australia has a compulsory voting system, penalties are imposed where an eligible voter has failed to vote. The penalties imposed in the Commonwealth, States and Territories are relatively small, with maximum penalties generally in the $50 range. 2 Under the current Commonwealth system, whether a person should be fined is first assessed at an administrative level. If records show that a person has failed to vote they are asked to explain why they failed to vote and, if the excuse is found to be unacceptable, they are notified of the fine they will be required to pay. If a person wishes to challenge such a judgment, the matter is determined before a court. The Australian Electoral Commission (AEC) first recommended in 1986 that this system be replaced by one similar to on-the-spot fines, where a person would be notified that the records showed that they had failed to vote and would have the option of paying a lesser fine, $20 was suggested, or contesting the matter in court. This proposal was originally rejected, with the Committee giving no reasons for its stance. The Committee stated that ``It is, however, opposed to enforcement by means of an expiation or `on the spot' system.'' 3 However, as explained in greater depth in the Committee's 1989 report, this decision has been reversed after consideration of legal opinions which pointed to difficulties in alternative amendments due to a possible mixing of the judicial and administrative powers. As a result, the Committee recommended a system of infringement notices to enforce compulsory voting.

Main Provisions Clause 7 will insert a new section 91C into the Principal Act. The proposed section will require the AEC to supply, as soon as practicable after the close of the rolls, a copy of the list of voters in the Division to all candidates in that Division. As well, proposed sections 91D and 91E provide for copies of the rolls to be provided to the successful candidates after an election.

Clause 13 will substitute a new section 170 into the Principal Act. It will require people nominating to be a candidate at an election to declare: * if they were born in Australia: their date and place of birth, or * if they were born overseas: the date on which they became an Australian citizen.

Proposed section 205 will lessen the current prohibition on having a polling booth on premises licensed to sell intoxicating liquor if the liquor is available during polling time. Such premises may be used if liquor is not for sale in that part of the premises used for polling purposes and this part is segregated, and if there is access through an area where liquor is not for sale (clause 18).

Penalty notices for failure to vote are dealt with in clause 21 which will amend section 245 of the Principal Act. Where an eligible voter is recorded as having failed to vote they will be issued with a notice and, if the person does not wish the matter to be dealt with by a court, they will be able to: * inform the AEC that they did vote and the circumstances of the vote; * give a valid and sufficient reason for not voting; or * pay a penalty of $20. If a person gives a reason that the AEC does not find is valid or sufficient, the person is to be notified that the matter may be disposed of by the payment of a $20 fine.

Part 3 of the Bill (clauses 34 to 44) will amend the Referendum (Machinery Provisions) Act 1984. The main amendments are the same as those described above in relation to polling in places that sell liquor and the penalty notice scheme.

References 1. Joint Standing Committee on Electoral Matters, Report No. 3, The 1987 Federal Election, pp. 36 and 37. 2. Ibid, p. 59. 3. Ibid, Report No 2, December 1986, p. 113.

Bills Digest Service 9 October 1991 Parliamentary Research Service

For further information, if required, contact the Law and Government Group on 06 2772430.

This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Commonwealth of Australia 1991

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Published by the Department of the Parliamentary Library, 1991.n