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Electoral and Referendum Amendment Bill (No. 2) 1998
Bills Digest No. 230 1997-98
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official l egal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Electoral and Referendum Amendment Bill (No. 2) 1998
Commencement: The amendments described in this Digest will generally commence on the 28 th day after the Bill receives Royal Assent. However, those dealing with the verification of the identity of a person seeking enrolment and the removal of the one month qualifying period for enrolment in an electorate will commence on a day to be fixed by Proclamation.
â¢ the requirements for enrolment aimed to minimise electoral fraud
â¢ remove the right of prisoners to vote in Federal elections and
â¢ make a number of largely administrative changes to the electoral law.
Following Federal general elections the Joint Standing Committee on Electoral Matters regularly holds an inquiry into the conduct of the election to identify further refinements to the Commonwealth Electoral Act 1918 to resolve problems identified at the previous general election. The Committee’s report on the 1996 general election was released in June 1997 and identified a number of matters that should be addressed before the next general election. A number of the recommendations contained in the Committee’s report were addressed in the Electoral and Referendum Bill 1997 which, at the time of writing, is before the Senate.
The matters to be addressed by this Bill contain no central theme and the Background to the various provisions will be discussed in the Main Provisions section of this Digest.
The report defined electoral fraud to include matters such as multiple voting (either by multiple voting by an enrolled elector or by placing the names of deceased persons on the roll), being enrolled in the wrong electorate or being enrolled while being a foreign citizen or underage. The report noted that such circumstances could arise by misunderstanding as well as deliberate fraud. The report also noted that:
The inquiry did not reveal improper enrolment or voting sufficient to affect any result at the election. However, it is unacceptable that the most fundamental transaction between a citizen and the government …. is subject to a far lower level of scrutiny than such lesser transactions as opening a bank account, applying for a passport, applying for a driver’s licence or registering for social security.(1)
It ma y be noted that while the transactions with the Commonwealth noted by the Committee generally require the production of a person’s tax file number (TFN), the Committee did not recommend the use of the TFN as an eligibility criteria for voters. Rather, the Committee recommended a number of changes, including that:
â¢ the witness requirements for enrolment be tightened
â¢ that an applicant for enrolment be required to produce at least one piece of original documentary evidence, such as a photographic drivers licence, Birth Certificate, passport, Medicare Card or a writ ten reference from a limited range of people and
â¢ that the use of data matching between Commonwealth, State and Territory bodies be examined to determine if it is effective to verify the identity of enrolment data.(2)
The report also noted that as the rol ls for an election close 7 days after the issue of the writs for the election, there is great pressure on the AEC to process the applications before the election, which hampers the ability to determine if the voter is eligible to be enrolled. The report notes that from the time that the writs were issued for the 1996 election until the rolls closed approximately 428 000 transactions were processed.(3) It was recommended that for new enrolments the rolls be closed on the day the writs are issued and for changes in details for enrolled voters the rolls close at the end of the third day after the issue of the writs.(4) The adoption of such a recommendation would reduce the time available for new electors to be entered on the rolls and has the potential to disenfranchise a greater number of potential voters.
Section 91 of the Commonwealth Electoral Act 1918 (the Principal Act) contains a general prohibition on the disclosure of the occupation, sex and date of birth of electors. The Electoral and Referendum Amendment Bill 1998 (which at time of writing is before the Senate) proposes to insert subsections 91(9A) and 91(9B) that will allow the sex of electors to be provided to organisations or people that conduct medical research or health screening; members of the House of Representatives or Senate; a registered political party; and an electoral authority of a State or Territory where the Act provides for the disclosure of information to such a body. Except for the last group, the information is to be provided by tape or disk. Item 1 of Schedule 1 will insert proposed subsection 91(9C) that will allow a tape or disk disclosing the date of birth or salutations of electors to be provided to a member of the House of Representatives or Senate or to a registered political party. If information is provided under section 91, section 91A provides restrictions on the purposes that the information can be used for. The purposes that a member of the House of Representatives or Senate, or a registered political party may use the information for will be expanded to include research regarding electoral matters ( items 5 and 7 ).
Changes to the period allowed for enrolment after the calling of an election are contained in items 11, 14 and 28 that amend various sections of the Principal Act that deal with the enrolment of voters to provide that after the issue of the writs for the election and during the ‘postponement period’ no new names are to be entered, or deleted, from the roll. The postponement period will be:
â¢ where the person is already on the roll, the period begins at 8 p.m. on the day the rolls close and
â¢ for those not on the roll, the period closes at 6 p.m. on the day the writs are issued
â¢ both periods end at the close of polling for the election.
(The procedure for an ele ction is for the Parliament to be dissolved, the issue of writs within a maximum of 10 days after the dissolution and the close of rolls 7 days after the issue of the writs.)
These amendments will implement the recommendation on the early closing of roles for unenrolled eligible voters as noted above.
Section 98 of the Principal Act deals with eligibility to have a name placed on the rolls. The current requirements are that the claim is made in an approved form, is signed by the applicant and is attested to by an elector or a person eligible for enrolment. Item 20 of Schedule 1 will insert new requirements to address the possibility of electoral fraud discussed above. Proposed subsection 98(2) provides that while the appropriate regulations are in force, the identity of the applicant must be verified according to the regulations unless the Divisional Returning Officer is satisfied that the person has previously been an elector and that if a claim is made that the person has been granted Australian citizenship this is to be verified according to the regulations.
The requirement that a person has lived in an electorate for a month to seek enrolment or provisional enrolment will be removed by items 21 to 23 which will amend section 99 of the Principal Act.
Section 188 of the Principal Act provides that where a Returning Officer receives a valid application for a postal vote they are to take certain action, including the posting of a ballot paper to the person. Proposed section 365A provides that where the Returning Officer arranges for the delivery of the material by means other than post, the Court of Disputed Returns is not to declare that a person was not duly elected or declare an election void because of the failure of the means of delivery. The proposed section also provides that it is not to have any implications about the effect of a delivery by post ( item 47 ).
The Bill proposes to disenfranchise all convicted persons of the right to vote.(6)
Existing paragraph 93(8)(b) of the Commonwealth Electoral Act 1918 suspends the right to vote for prisoners ‘serving a sentence of 5 years or longer for an offence against the law of the Commonwealth or of a State or Territory’. The disenfranchisement given by paragraph 93(8)(b) is based on the actual sentence given to the convicted person rather than the maximum sentence applicable to the crime committed by the convicted person. The Controllers-General of Prisons are required to identify the prisoners affected by such a provision and send a list of such prisoners to the Australian Electoral Commission. The provision has in the past been criticised on the basis that it creates practical difficulties.(7) The Joint Standing Committee on Electoral Matters recommended in its 1993 Federal Election report that voting rights be extended to all prisoners but this was rejected by the then Government in July 1995.(8)
Relevant International Law
The right to vote is mentioned in article 25 of the International Covenant on Civil and Political Rights (ICCPR) which states:
Every citizen shall hav e the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Article 25 must be read in conjunction with article 2 which obliges State Parties (of which Australia is one) as follows:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its terri tory and subject to its jurisdiction the rights recognised in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognised in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.
The Human Rights Committee (HRC) has made a General Comment on Article 25 in which it affirmed that article 25 ‘lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant’.(9) The HRC seems to suggest that a conviction may be used as a basis for suspending the right to vote(10) although legislative provisions ‘which would deprive citizens of their right to vote’ must be indicated in the State Parties report to the HRC and ‘explained’. Therefore it seems that a ‘blanket application’ of a rule prohibiting prisoners from voting may well fall outside the scope of the ‘allowable exceptions’ contemplated by the HRC. This point is not clear from the HRC General Comment but other legal commentators have asserted that:
…the denial of the right of convicted persons is a distinction based upon their legal status as convicted persons and, consequently, runs counter to the spirit and indeed the letter of the Covenant ….Criminal conviction does not impair one’s ability to make rational voting choices.(11)
Factors that would be relevant to whether, in having exclusions, a country had breached article 25 would be the resources of the country and the possibility of alternative methods of voting (such as postal voting). The more well-resourced the country and the more there were systems in place that would facilitate voting by prisoners (such as postal voting) the more likely it would be that the denial of those voting rights would be a breach of the ICCPR.
Other relevant international instruments are the Standard Minimum Rules for the Treatment of Prisoners which has under the heading ‘guiding principles’ the aim of minimising ‘any differences between prison life and life at liberty which tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings.’ Arguably this might mean that they should have rights and responsibilities for voting akin to ordinary citizens. The United Nations Universal Declaration on Human Rights 1948 is also relevant because it is commonly argued that the principles therein are rules of customary international law and therefore are binding even though the Declaration does not have treaty status. Article 21(1) of the Declaration states:
Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Other Reports on the Right to Vote
A 1987 article from the Criminal Law Journal on the Voting Rights of Convicted Persons attributes the origin of policies disenfranchising prisoners of their right to vote is to the idea of ‘civil death’. Other historical justifications given were arguments such as Locke’s theory that ‘every person who enters society authorises the society, or its legislative body, to make laws for the public good and pledges that she or he will assist in the execution of those laws’.(12) This means that a conviction (p11) ‘resulted in the annihilation of one’s legal existence and the consequent removal of all corresponding legal rights. And with the loss of legal rights and status, the right to vote - the right to political self-expression, was similarly removed.’
The 1973 Mitchell Committee’s report on penal reform made disparaging comments about the above view:
We can see no ground for preserving these disabilities. The right to vote seems to us to have no connection with the question whether the voter is a good or a bad citizen. For this reason we refrain from analysing these provisions in detail and commenting on the anomalies which appear in their terms. We confine ourselves to a simple recommendation that they be abolished.(13)
The majority of the 1993 Joint Standing Committee on Electoral Matters similarly recommended that the existing provision (which disenfranchise s prisoners serving a sentence punishable by five years or more imprisonment from voting) be repealed:
Recommendation 68: that subsection 93(8)(b) and section 109 of the Electoral Act be repealed, so that an elector is not deprived of the right to enrol or vote on the basis that the elector is a prisoner (except in the event of a conviction for treason or treachery).(14)
A dissenting report was written by Mr Connolly MP, Senator Minchin, Senator Tierney and Mr Cobb MP which noted that the concept of imprisonment encompassed a number of aspects including ‘the denial of a wide range of freedoms to provide a disincentive to c rime’.
The right for people serving a sentence of imprisonment to vote in Federal elections will be removed by items 10, 18 and 29.
Amendments to the Referendum (Machinery Provisions) Act 1984
Amendments to this Act reflect those described above in respect to the time of closing of the rolls and the effect of a failure of non-postal delivery arrangements.
1. Joint Standing Committee on Electoral Matters, The 1996 Federal Election, 5.
2. Ibid., 11.
3. Ibid., 14.
4. Ibid., 14.
5. The Background for t his section was prepared by Susan Downing of the Law and Bills Digest Group.
6. For a discussion of the the issues see Orr, G. Ballotless and Behind Bars: The Denial of the Franchise to Prisoners, (1998) F.L.R. v26(1) 55-82.
7. Evidence of AEC to Joint Standing Committee on Electoral Matters see p142 of t he 1993 Federal Election: Report of the Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto.
8 .Press Release , 10 July 1995, The Hon. Kim Beazley MP.
9. Human Rights Committee , General Comment 25 (57) adopted at the 1510 th meeting (1996) U.N. Doc. CCPR/C/21/Rev.1/Add.7.
10. Ibid paragraph 14.
11. Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted Persons (1987) 11 CLJ 11-39 at 39.
12. Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted Persons (1987) 11 CLJ 11-39 at 12.
13. Criminal Law and Penal Methods Reform Committee of South Australia, Report No. 1, Sentencing and Corrections (1973), at p.130 as quoted in Fitzgerald, J. & Zdenkowski, G. Voting Rights of Convicted Persons (1987) 11 CLJ 11-39 at 12.
14 . The 1993 Federal Election: Report of the Inquiry into the Conduct of the 1993 Federal Election and Matters Related Thereto, Joint Standing Committee on Electoral Matters, 143-44.
Chris Field and Susan Downing
12 June 1998
Bills Digest Service
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