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Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004



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I N F O R M A T I O N , A N A L Y S I S A ND A DV ICE FO R T HE PA RL IA MENT

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S PAR LIAMEN TAR Y L IBR AR Y

Bills Digest No. 136 2003-04

Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

D E P A R T M E N T O F P A R L I A M E N T A R Y S E R V I C E S

ISSN 1328-8091

 Copyright Commonwealth of Australia 2004

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This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document. IRS staff are available to discuss the paper's contents with Senators and Members and their staff but not with members of the public.

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Published by the Information and Research Services, Parliamentary Library, Department of Parliamentary Services, 2004.

I N F O R M A T I O N A N D R E S E A R C H S E R V I C E S

Bills Digest

No. 136 2003-04

Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Jerome Davidson Law and Bills Digest Group 18 May 2004

Contents

Purpose . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Prisoner disenfranchisement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Enrolment in respect of an address, objections and provisional voting . . . . . . . . . . . . . .3

Compulsory transfer of enrolment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Proof of identity and address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

Early close of rolls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Sex and date of birth on the certified list . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Scrutineers not to actively assist . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Change to minimum disclosure provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

Removal of requirement for publishers and broadcasters to furnish returns on electoral advertisements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Labelling as ‘advertisement’ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Increased penalty for false witness of enrolment paper . . . . . . . . . . . . . . . . . . . . . . . . . .8

New offence of intentional multiple voting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Main Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Amendments to the Commonwealth Electoral Act 1918 . . . . . . . . . . . . . . . . . . . . . . . .9

Referendum (Machinery Provisions) Act 1984 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Concluding Comments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Endnotes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Date Introduced: 1 April 2004

House: House of Representatives

Portfolio: Special Minister of State

Commencement: Various, as indicated in the Main Provisions section of this digest

Purpose

The purpose of the Bill is to amend the Commonwealth Electoral Act 1918 (the ‘Electoral Act’), the Referendum (Machinery Provisions) Act 1984 (the ‘Referendum Act’) and other Acts in response to recommendations of the Joint Standing Committee on Electoral Matters (JSCEM), made in its reports on the 2001 and 1998 federal elections, and its 2001 report on the integrity of the electoral roll. The Bill also includes measures contained in the Electoral and Referendum Amendment (Roll Integrity and Other Measures) Bill 2002, currently before the Parliament. The Government proposes that debate not proceed on the 2002 Bill.1

Background

Prisoner disenfranchisement

The Bill proposes to amend the Electoral Act to remove the right to vote from all persons serving a full time sentence of imprisonment in respect of their conviction for an offence against the law of the Commonwealth or of a State or a Territory. Currently, prisoners serving sentences of 5 years or more are prevented from voting in federal elections. The current provision removes the right to vote from about 11 000 people, the proposed provision would add around 7 000 to that figure. Because the Australian prison population is composed of a substantially disproportionate number of indigenous prisoners, the removal of the right to vote has a disproportionate effect on the indigenous population. Indigenous persons are 16 times more likely to be in prison than non-indigenous persons.2

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

2 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

The voting entitlement of prisoners has been a controversial issue. In its report on the 1993 election, the JSCEM adopted the recommendation of its predecessor (made in its report on the 1986 election) that all prisoners, except those convicted of treason, be granted the right to vote.3 As the JSCEM said:

An offender once punished under the law should not incur the additional penalty of loss of the franchise. We also note that a principle aim of the modern criminal law is to rehabilitate offenders and orient them positively toward the society they will re-enter on their release. We consider that this process is assisted by a policy of encouraging offenders to observe their civil and political obligations.4

The JSCEM report on the 1998 election noted that the majority of the committee supported earlier recommendations in favour of giving all prisoners the franchise but stopped short of making a recommendation to this effect itself, on the basis that public support was lacking.5 Those pursuing this or similar positions include the International Commission of Jurists6, the Criminal Law and Penal Methods Reform Committee of South Australia,7 the Seventh International Congress of Criminal Law,8 and the Report of the Royal Commission into New South Wales Prisons (1978) (the ‘Nagle Report’),9 in which Mr Justice Nagle expressed the view that:

A citizen’s right to vote should depend only on his ability to make a rational choice. Loss of voting rights is an archaic leftover from the concepts of ‘attainder’ and ‘civiliter mortuus’ and has no place within a penal system whose reform policies aim to encourage the prisoner’s identification with, rather than his alienation from, the community at large. All prisoners should be entitled to vote at State and Federal elections. Necessary facilities should be provided for them to exercise their franchise.10

Despite this substantial support, Bills to give all prisoners the right to vote have twice failed, in 1989 and in 1995.11 And in 1996 the JSCEM, contrary to its two previous reports on this issue, recommended that all prisoners be denied the vote on the grounds that:

While rehabilitation is an important aspect of imprisonment, equally important is the concept of deterrence, seeking by the denial of a range of freedoms to provide a disincentive to crime. Those who disregard Commonwealth or State laws to a degree sufficient to warrant imprisonment should not be expected to retain the franchise.12

It is this recommendation that the current Bill seeks to implement.13 One previous attempt to give effect to this view (the Electoral and Referendum Amendment Bill 1998) failed when it was opposed in the Senate by the Australian Labor Party, the Democrats and the Greens, and the 2002 Bill containing the same measure has not been proceeded with.14

The power of the Commonwealth Parliament to disenfranchise prisoners is not beyond doubt. It is arguable that there is an implied right to vote inherent in the system of representative government established by the Constitution, and that prisoner disenfranchisement is not consistent with that right. For a more extensive discussion of the

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Electoral and Referendum Amendment (Enrolment Integrity and 3

Other Measures) Bill 2004

opposing arguments and constitutional validity of the proposed provision, see Jerome Davidson, ‘Inside outcasts: Prisoners and the right to vote in Australia,’ Current Issues Brief, Parliamentary Library, Canberra, 2003-04, extracts from which have been reproduced here.

Enrolment in respect of an address, objections and provisional voting

The Bill contains several amendments directed at changing the basis of enrolment under the Electoral Act from residence within a subdivision to residence at an address within a subdivision. The AEC has, on a number of occasions, submitted to the JSCEM that the basis of enrolment should be the elector’s address. The AEC, since the early 1990s, has been implementing an address based roll. According to the AEC:

There are a number of advantages in converting to an address based system. One obvious advantage is that the system will detect any enrolment anomalies. For example if an elector were to enrol in an address that was non-habitable, the system would provide appropriate information to the operator and ensure follow up action was undertaken. Similarly if a large number of electors were to enrol in a single dwelling then the system would indicate a possible problem. The address based system represents a significant technical development for improving the quality of the enrolment database, and is an essential pre-requisite for any large-scale data-matching.15

The AEC has also adopted a continuous roll update system, by which the roll is updated continuously rather than at regular intervals (previously two years). Continuous roll updating based on the address register has led to an anomaly by reason of the fact that enrolment under the Electoral Act is based not on address but on division.16 A problem occurs when the AEC becomes aware that an elector has changed address. In that circumstance the AEC sends a notice to the elector advising that their name will be removed if a satisfactory reply is not received.17 In the absence of a satisfactory reply, the AEC initiates ‘objection action’ to remove an elector from the roll.18 The AEC noted:

If an objection deletion is actioned by the AEC, and when attempting to vote, the elector claims to be living within the subdivision, and provided the objection was actioned since the last redistribution or since the general election before last, whichever is later, the objection is deemed to have been based on a mistake of fact, and the elector must be reinstated without question as to their actual residency, and their vote counted.19

The requirement that an elector be reinstated on the roll is contained in section 105(4) of the Electoral Act. Another complaint of the AEC is that division based enrolment causes administrative problems in terms of state vis a vis federal rolls:

When we are talking about a person who has moved from one State electorate to another we end up taking them off the State roll and keeping them on the federal roll. Then we have the problem of trying to get them to re-enrol for the State electorate. It

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

4 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

is becoming a very messy business… If we were to enrol the people for their new address, we would not have that confusion; we would do it all in one.20

In its report on the 1993 election, the JSCEM’s response to this proposal was:

The Committee can see the logic in the proposal that the basis for enrolment should be address rather than Division, but can also see a danger that electors who fail to keep their enrolled address up to date, but still reside within the same Division, could be disenfranchised. While the basis for public education should certainly be that people notify the AEC if they change address, the Committee does not believe that address rather than Division should be the basis for enrolment and objection under the Electoral Act.21

The same concern regarding potential disenfranchisement was raised by Senator John Faulkner, Michael Danby MP and Laurie Ferguson MP in a JSCEM Minority Report.22 Taking account of those concerns, in its report on the 1998 election, the JSCEM recommended that:

The basis of enrolment be the elector’s address, and that the objection provisions be amended such that an elector can be removed from the Roll when it can be shown the elector no longer lives at their enrolled address.

If an elector moves with their Division, does not re-enrol, and is removed by objection, their provisional vote for their Division will be counted, provided their last enrolment was within that Division and was since the last redistribution or general election; and

If an elector moves outside their enrolled Division, but remains within the State / Territory, and claims a vote within their old or new Division, their vote in the Senate will count but the House of Representatives vote will not count.23

It is this recommendation that the current Bill implements.

Compulsory transfer of enrolment

The Bill amends the Electoral Act to create an obligation to inform the Divisional Returning Officer for a Division within 21 days after a person has changed address and been living at the new address for a period of one month. The existing provision24 requires notification within 21 days after the change. The penalty for non-compliance is to be one penalty unit (currently $110), as opposed to the existing penalty of $50.

Proof of identity and address

The Bill provides for a requirement that evidence of identity and address be shown when enrolling, changing enrolment, or claiming entitlement to vote when the elector’s name is not on the certified list. The details of the evidence that will be required are not provided

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Electoral and Referendum Amendment (Enrolment Integrity and 5

Other Measures) Bill 2004

for in the Bill. Rather, the Bill provides for regulations to be made for that purpose. The Bill expressly provides that the new requirements relating to proof of identity do not apply unless regulations for this purpose are in operation when a claim for enrolment or change of enrolment, or a claim to be entitled to a provisional vote, is made.

In its report on the 2001 election, the JSCEM expressed concern that ‘confidence in the electoral system should not be undermined because the proof of identity required to vote to determine the government of Australia is less than that required, for example, to become a member of a video library.’25 The JSCEM recommended that:

All applicants for enrolment, and re-enrolment provide documentary evidence verifying their name and address by providing photocopies of a driver’s licence or other documents accepted by the AEC, and where such documents cannot be provided, by two people who are on the electoral roll supplying a confirmation of identity and address.26

The JSCEM considered that more stringent requirements are necessary because (1) there is potential for abuse of the system; (2) confidence in the system is undermined by perceptions of potential for abuse, whether or not actual abuse is taking place; and (3) that it is inappropriate that proof of identity requirements on enrolment are lax in comparison with other transactions which are equally or less important.27

Although the requirements for proof of identity will ultimately be specified in regulations, the Australian Labor Party has indicated an intention not to support this provision, objecting to a statement in the Explanatory Memorandum that:

Where no identification documentation [is] available, only people in a prescribed class would be able to provide written references supporting an enrolment application.28

According to the ALP, that statement is contrary to the recommendation of the JSCEM.29 Until such time as draft regulations are circulated, outlining the exact nature of the ‘prescribed class’ of person capable of providing references, it will be difficult to advance debate on this issue.

Early close of rolls

The ‘close of rolls’ refers to the time by which electors must enrol or change enrolment details prior to an election. Currently, the time is seven days after the election writs30 are issued. The proposed amendments in the Bill provide for this period to be shortened, in respect of new enrolments, to 6pm on the day the writs are issued, and, in respect of change of enrolment, to 8pm three working days after the writs have issued. This provision is based on recommendation 3 of the JSCEM’s report on the 1998 election. The Committee noted that ‘the greatest catalyst for enrolment is an electoral event.’31 Because a large number of enrolments occur in the short time before the close of the rolls, the

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

6 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Committee was concerned about potential inaccuracies in the roll as a result of the AEC not being able to properly check details. In its report on the 2001 election, however, the JSCEM was of a different view:

The Committee examined proposals to shorten the close of rolls period but concludes that, particularly in light of the checking process in place and the recommendations to strengthen proof of identity requirements for enrolment and re-enrolment, the close of rolls period should remain at seven days.32

The JSCEM noted that, during the 2001 election, 373 732 voters enrolled or re-enrolled during the close of rolls period, 83 027 of whom were new enrolees.33 These figures demonstrate the truth of the previous JSCEM’s observation that for many, an electoral event is a catalyst for enrolment. For that reason, however, a provision shortening the period has potential to disenfranchise large numbers of people.

Sex and date of birth on the certified list

The Bill provides for the sex and date of birth of electors to appear on the certified list for elections and referenda. Such provision is based on a recommendation made by the JSCEM.34 The reasoning behind the recommendation was:

The committee is of the view that the inclusion of the gender and date-of-birth of electors on the Certified Lists would provide an instant and improved check on identity when voting. The inclusion of this additional information on the Certified Lists would enable polling officials to easily verify the identity of electors if required.35

Scrutineers not to actively assist

It is proposed under the Bill to prohibit scrutineers36 from assisting disabled voters to cast their votes. The provision is based on a recommendation of the JSCEM in its report on the 1998 election.37 The recommendation appears to have been motivated by concern that

scrutineers might influence the disabled voter. The recommendation was not unanimously supported. In their minority report, Senator John Faulkner, Michael Danby MP and Laurie Ferguson MP, said:

Currently, the elector decides who will assist them. This is a very practical way of handling assisted voting - it is fair, and it preserves the secrecy of an individual’s vote. It does not compromise an elector’s rights, nor does it in any way compromise the proper functioning of polling booths or the integrity of the electoral process.38

Change to minimum disclosure provisions

There are several provisions under the Electoral Act requiring disclosure of certain transactions in excess of fixed amounts. Persons making donations to a registered political

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Electoral and Referendum Amendment (Enrolment Integrity and 7

Other Measures) Bill 2004

party totalling more than $1500 in any one year are required to furnish a return to the AEC disclosing the amount and date of the donation and the political party to which it was made.39 Political parties or persons acting on their behalf are required to disclose donations received of $1000 or more.40 Political parties, candidates and persons acting on their behalf must not accept loans of $1500 of more without keeping detailed records thereof.41 Political parties must lodge annual returns containing details of amounts received, or debts incurred, of $1500 or more.42

The Bill proposes to increase the threshold in all of those instances to $3000. That is based on recommendations made in the JSCEM report of the 1998 election.43 The reasoning of the Committee was that the amendment would ease the administrative burden associated with the disclosure provisions. The Committee rejected submissions by the Liberal Party that the threshold amounts should be $10 000. The recommendations of the JSCEM were opposed by Senator John Faulkner, Michael Danby MP and Laurie Ferguson MP in their JSCEM Minority Report.44 Their opposition was based on the assertion that increasing the threshold ‘has no policy merit and will only diminish the transparency of the disclosure laws and allow further donations to parties and candidates to go undisclosed.’45 Senators Andrew Bartlett and Andrew Murray made their own series of recommendations for disclosure.46

Removal of requirement for publishers and broadcasters to furnish returns on electoral advertisements

The Electoral Act currently requires publishers and broadcasters to lodge returns with the AEC disclosing details of pre-election political advertising including the identity of the advertiser, the authority for the advertisement, the times it was broadcast or published and the amount charged.47 The Bill proposes to remove these requirements from the Act. This is a ‘government-initiated’ amendment. The rationale is that:

These provisions place an administrative burden on publishing and broadcasting businesses that is not required because expenditure on electoral advertising is already disclosed by individuals and organisations that authorise the advertisements as required under other sections of the Electoral Act.

48

It might be argued, however, that the requirement for broadcasters and publishers to furnish returns provides a means of checking that information received by other parties is accurate and complete.

Labelling as ‘advertisement’

The Electoral Act currently requires that, where an article or paragraph in a journal contains ‘electoral matter’, the proprietor of the journal must cause the word ‘advertisement’ to be printed as a headline to the article or paragraph.49 ‘Electoral matter’ is defined in the Act to mean ‘matter which is intended or likely to affect voting in an

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

8 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

election.’ As the Explanatory Memorandum notes, this means that, ‘as the legislation currently stands, any political commentary in any journal must be labelled as an advertisement.’50 Acting on a submission by the AEC, the JSCEM, in its report on the 1998 election, recommended that the Act be amended to require only that advertisements containing electoral matter in journals be required to be so labelled. This is the recommendation that is now being acted upon. The recommendation was opposed by Senator John Faulkner, Michael Danby MP and Laurie Ferguson MP in their JSCEM Minority Report, on the ground that they opposed ‘any weakening in the accountability for, and transparency of election advertising material.’51 With respect to the dissentients, however, the amendment clearly has merit, in that it corrects what is obviously a technical flaw in the Act.

Increased penalty for false witness of enrolment paper

The Electoral Act currently prohibits persons from signing, as witness:

• a blank electoral paper

• an electoral paper that has been completed but not signed by the relevant person; and

• a signed electoral paper where the witness did not actually see the person sign the document.52

The Bill increases the maximum penalty for contraventions of that prohibition from $1000 fine to 12 months imprisonment. The Explanatory Memorandum refers to ‘false claims by witnesses’, but no element of fraudulent intent is required. Hence a person who signs a blank paper, trusting that a good friend will complete it, or who witnesses a paper without having actually seen the person sign, but trusting that they did, will be liable, under the proposed amendment, to 12 months imprisonment. Since other offences under the Act involving actual fraud attract a maximum of only 6 months imprisonment, the proposed penalty appears disproportionate.53

New offence of intentional multiple voting

The Bill introduces a new offence of ‘intentional multiple voting.’ This will be in addition to the existing offence of multiple voting under the Electoral Act, which attracts liability of 10 penalty units (currently $1100). The difference between the two offences is that the new provision requires proof of intention to cast multiple votes, whereas the existing offence is one of strict liability54, which means that the prosecution need not prove that the person acted deliberately but a defence exists if the accused proves they voted more than once by reason of an honest and reasonable mistake.

The new offence carries a penalty of up to 60 penalty units or 12 months imprisonment or both. There is specific provision to the effect that, where a person votes a number of times,

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Electoral and Referendum Amendment (Enrolment Integrity and 9

Other Measures) Bill 2004

each vote constitutes an offence. The Explanatory Memorandum says the aim is to ‘reinforce the severity of multiple voting.’55 This is an unusual provision. It effectively provides a varying maximum sentence to which each offence adds one year and it would be within the power of the court to determine whether any prison sentence should be served cumulatively or concurrently.56 A simpler method might be to increase the maximum sentence and make the one course of criminal conduct equivalent to one offence, consistent with the manner in which the criminal law would usually proceed.

Main Provisions

Amendments to the Commonwealth Electoral Act 1918

Schedule 1, items 6, 7, 18, 26, 46, 71, and 95

These items amend the Electoral Act to remove voting rights from prisoners serving sentences of full-time detention. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, items 8, 11, 14, 15, 20 to 25, 27 to 36, 38 to 41, 43, 47, 48 to 57, 96 to 102

These items amend the Electoral Act to make addresses, rather than Divisions, the basis of enrolment, and the associated amendments to the objection and provisional voting sections. These items commence on the 28th day after the Act receives the Royal Assent.

Schedule 1, items 9, 12, 16, 19 and 42

These items amend the Electoral Act to add more stringent requirements relating to proof of identity and address. These items commence on a date to be fixed by proclamation.

Schedule 1, items 10, 13, 17, 37, 45, 62 and 63

These items amend the Electoral Act to shorten the period before the close of the rolls. These items commence on a date to be fixed by proclamation.

Schedule 1, items 72 to 74, 76 and 77

These items amend the Electoral Act to add a requirement for the inclusion of sex and date of birth details on the certified list for elections and referenda. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 75

These items amend the Electoral Act to prevent scrutineers from assisting disabled voters to vote. These items commence on the 28th day after the Act receives Royal Assent.

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

10 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Schedule 1, items 79 to 84, 86 and 87

These items amend the Electoral Act to provide for an increase in the threshold for various disclosure provisions. The provisions commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 85

This item amends the Electoral Act to remove the requirement for publishers and broadcasters to furnish returns containing details of electoral advertisements. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, items 88 to 91

These items amend the Electoral Act to modify the requirement for the label ‘advertisement’ to appear on published material by limiting it to advertisements, not article or paragraphs. The items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 92

This item amends the Electoral act to increase the penalty for signing a blank electoral paper, or one that has not been signed, or one where the person signing as witness has not actually witnessed the signing of the paper. The provision commences on the 28th day after the Act receives Royal Assent.

Schedule 1, item 93

This item amends the Electoral Act to introduce a new offence of intentional multiple voting in elections. The provisions commence on the 28th day after the Act receives Royal Assent.

Referendum (Machinery Provisions) Act 1984

Schedule 1, items 127 to 132

These items amend the Referendum Act to make addresses, rather than Divisions, the basis of enrolment, and the associated amendments to the objection and provisional voting sections. These items commence on the 28th day after the Act receives the Royal Assent.

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

Electoral and Referendum Amendment (Enrolment Integrity and 11

Other Measures) Bill 2004

Schedule 1, items 106 to 109

These items amend the Referendum Act to shorten the period before the close of the rolls. These items commence on a date to be fixed by proclamation.

Schedule 1, items 110 to 112, 114 and 115

These items amend the Referendum Act to add a requirement for the inclusion of sex and date of birth details on the certified list for elections and referenda. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 113

This item amends the Referendum Act to prevent scrutineers from assisting disabled voters to vote. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 118

This item amends the Referendum Act to remove the requirement for publishers and broadcasters to furnish returns containing details of electoral advertisements. These items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, items 119 to 123

These items amend the Referendum Act to modify the requirement for the label ‘advertisement’ to appear on published material by limiting it to advertisements, not article or paragraphs. The items commence on the 28th day after the Act receives Royal Assent.

Schedule 1, item 125

This item amends the Referendum Act to introduce a new offence of intentional multiple voting in referenda. The provisions commence on the 28th day after the Act receives Royal Assent.

Concluding Comments

The Bill proposes several measures for the amendment of the Acts regulating the Australian electoral process. The more controversial proposals include to remove the right to vote from all persons serving a full-time sentence of imprisonment and the proposal to shorten the period before the close of the rolls. Parliament might consider whether those provisions have the potential to disenfranchise a significant number of people. Parliament may also wish to give close scrutiny to the proposed penalty provisions for the new offence of intentional multiple voting, and for the existing offences of falsely witnessing electoral papers. Consideration of the provisions relating to proof of identity and address

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

12 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

might be assisted by the circulation of any draft regulations intended to be introduced for this purpose.

Endnotes

1 Peter Slipper, Parliamentary Secretary to the Minister for Finance and Administration, ‘Second reading speech: Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004’, House of Representatives, Debates, 1 April 2004, p. 27931.

2 Australian Bureau of Statistics Prisoners in Australia 2003, p. 5.

3 Joint Standing Committee on Electoral Matters, The 1993 Federal Election: Report of the inquiry into the conduct of the 1993 federal election and matters related thereto, Canberra, November 1994, p. 143.

4 ibid.

5 Joint Standing Committee on Electoral Matters, The 1998 Federal Election: Report of the inquiry into the conduct of the 1998 federal election and matters related thereto, Canberra, June 2000, p. 89.

6 In a submission to the Joint Standing Committee on Electoral Matters, see The 1996 Federal Election: Report of the inquiry into the conduct of the 1996 federal election and matters related thereto, Joint Standing Committee on Electoral Matters, Canberra, 1997, p. 48.

7 Sentencing and Corrections (Report No. 1, 1973), p. 130.

8 M. Damaska, ‘Adverse legal consequences of conviction and their removal: a comparative Study’, in Journal of Criminal Law, Criminology and Police Science, vol. 59, 1968, p. 358.

9 Mr Justice Nagle, Report of the Royal Commission into New South Wales Prisons, March 1978.

10 ibid., p. 561.

11 See: Graeme Orr, ‘Ballotless and Behind Bars: The Denial of the Franchise to Prisoners’, in Federal Law Review, vol. 26, 1998, p. 72.

12 The 1996 Federal Election, op. cit., p. 48.

13 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004 explanatory memorandum, par. 23.

14 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2002.

15 Australian Electoral Commission, Supplementary submission to the Joint Standing Committee on Electoral Matters: Enrolment and Voter Identification, Canberra, 23 October 1996, par. 4.4.8.

16 Commonwealth Electoral Act 1918, section 99.

Electoral and Referendum Amendment (Enrolment Integrity and 13

Other Measures) Bill 2004

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

17 Australian Electoral Commission, Electoral Roll Review, at: http://www.aec.gov.au/_content/what/enrolment/roll_review.htm

18 Part IX of the Act deals with objections.

19 Australian Electoral Commission, Supplementary submission to the Joint Standing Committee on Electoral Matters: Admissibility of Provisional Votes, Canberra, 23 March 1999, par. 2.1(c).

20 The 1993 Federal Election, op. cit., p.57 quoting evidence of the Divisional Returning Officer.

21 ibid., par. 4.4.36.

22 The 1998 Federal Election, op. cit., p. 158.

23 Joint Standing Committee on Electoral Matters The 1998 Federal Election: Report of the Inquiry into the conduct of the 1998 Federal Election and matters related thereto, Canberra, June 2000, p. 248, recommendations 7 & 38.

24 Section 101(5).

25 Joint Standing Committee on Electoral Matters, The 2001 Federal Election: Report of the Inquiry into the conduct of the 2001 Federal Election and matters related thereto, Canberra, June 2003, pp. vii, xxvii, 44.

26 ibid., p. xxviii.

27 ibid., p. 34.

28 Explanatory memorandum, p. 11.

29 Bob McMullan, ‘Second reading speech: Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004’, House of Representatives, Debates, 13 May 2004, p. 28466.

30 A writ is a formal legal document commanding an electoral officer to hold an election and contains dates for the close of rolls, close of nominations, polling day and the return of the writ.

31 The 1998 Election, op. cit. par.2.23, p. 14.

32 The 2001 Federal Election, op. cit., p. xxix.

33 ibid.

34 Joint Standing Committee on Electoral Matters, User friendly, not abuser friendly, Report of the Inquiry into the Integrity of the Electoral Roll, Canberra, May 2001, p. 15.

35 ibid.

36 A ‘scrutineer’, according to Butterworths’ Encyclopeadic Australian Legal Dictionary, means ‘In relation to an election, an overseer of the scrutiny process appointed by a candidate to represent the candidate at the scrutiny.’

37 The 1998 Election, op. cit., par. 3.64 (recommendation 36), p. 81.

14 Electoral and Referendum Amendment (Enrolment Integrity and Other Measures) Bill 2004

Warning:

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 legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

38 ibid., p. 157.

39 Commonwealth Electoral Act 1918, section 305B.

40 ibid., section 306(1).

41 ibid., section 306A(1)&(2).

42 ibid., section 314AB, 314AC(1) & 314AE(1).

43 The 1998 Federal Election, op. cit., recommendation 44 and 45, pp. 158-9.

44 ibid., p. 158.

45 ibid., p. 158.

46 ibid., pp. 173-176.

47 Commonwealth Electoral Act 1918, sections 310, 311.

48 Explanatory Memorandum, par. 115.

49 Commonwealth Electoral Act 1918, section 331(1).

50 Explanatory Memorandum, p. 17.

51 The 1998 Federal Election, op. cit., p. 156.

52 Section 337(1).

53 See, for example, section 339(1).

54 Criminal Code Act 1995, section 6.1.

55 op. cit., p. 18.

56 Crimes Act 1914, section 19.