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Electoral and Referendum Amendment Bill (No. 1) 2001

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1998-1999-2000-2001

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT BILL (No. 1) 2001

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

(Circulated with the authority of the Special Minister of State,

Senator the Honourable Eric Abetz)

 

 

 

 

 



 

ELECTORAL AND REFERENDUM AMENDMENT BILL (No. 1) 2001

 

 

 

OUTLINE

 

The Bill contains technical measures, amending both the Commonwealth Electoral Act 1918 (CEA) and the Referendum (Machinery Provisions) Act 1984 (RMPA), arising from the government-supported recommendations of the Joint Standing Committee on Electoral Matters’ (JSCEM) report on the 1998 Federal Election, which was tabled in the Parliament in June 2000.

 

It should be noted that the JSCEM recommedations on which this bill is based were supported by all members of the JSCEM.

 

The most notable amendments include those which will:

·          allow persons who are enrolling or voting from overseas to provide a certified copy of particular sections of their current passport as verification of their identity in the case where they cannot find an authorised witness;

·          provide that Divisional Returning Officers (DROs) and Australian Electoral Officers (AEOs) may reject applications for enrolment from persons who have changed their names to something ‘inappropriate’ (eg. ficticious, frivolous, offensive, obscene or assumed for an ulterior purpose).  However, there will be appeal rights against a decision to reject such a name.

·          allow for the provision of electronic lists of postal vote applicants to candidates and registered political parties following a general election and to members of the House of Representatives (HOR), Senators and registered political parties following a referendum held separately to a general election;

·          allow for the amendment or withdrawal of a Group Voting Ticket (GVT) or Individual Voting Ticket (IVT) statement up until the closing time for lodgement of such statements;

·          provide that Senate nomination deposits are to be returned to the person who paid the deposit;

·          allow, prior to the close of nominations, for the substitution of a candidate in a bulk nomination, where a candidate who was part of that bulk nomination withdraws their consent, or dies prior to the close of nominations;

·          provide that where a person has cast multiple declaration votes, and these are detected at the preliminary scrutiny, that only one of the votes will be admitted to the further scrutiny;

·          provide that all ballot papers are to be initialled on the front top right-hand corner;



·          allow for the display of GVT and IVT information in pamphlet form as well as in poster form;

·          provide that the registered abbreviation of a political party name may be only an acronym or a shortened version of the party name; and

·          provide the Australian Electoral Commission (AEC) with a power to review the continuing eligibility of registered political parties.

 

 

FINANCIAL IMPACT STATEMENT

 

The AEC will be absorbing the costs of some of the measures.  Funding for the remainder of the measures will be considered in the context of the 2001-02 Budget.



NOTES ON CLAUSES

 

 

Clause 1 - Short title

 

1.         This clause provides for the Act to be cited as the Electoral and Referendum Amendment Act (No. 1) 2001.

 

Clause 2 - Commencement

 

2.         This clause provides that the Act will commence on a day to be fixed by Proclamation.  The AEC would be working to implement the Act, and have it proclaimed, as soon as possible.  However, should a federal election be called before the AEC is in a position to implement the Act, the amendments would not be effective for the purpose of that election.

 

Clause 3 - Schedule(s)

 

3.         This clause provides that each Act specified in a Schedule is amended or repealed as set out in the Schedule, and any other item in a Schedule has effect according to its terms.

 

 

Schedule 1 - Amendments to Commonwealth Electoral Act 1918 (CEA) and Schedule 2 - Amendments to Referendum (Machinery Provisions) Act 1984 (RMPA)

 

Schedule 1 items 1 and 80 - definition of ‘abbreviation’ and related transitional periods

 

4.         This amendment alters the definition of ‘abbreviation’ in section 4 of the CEA in relation to registered political parties to provide that rather than being “an alternative name of the party”, as previously defined, it may only be “a shortened version, or an acronym, of the party’s name and does not include an alternative name of the party.”

 

5.         This amendment is intended to prevent parties registering abbreviations that may be an alternative to, or even longer, than the registered party name.  The abbreviation should be an acronym of, bear a meaningful connection to, and be no longer than the registered party name.  This amendment will ensure that the original intention of providing for the registration of an abbreviated party name is observed.  (Registered officers may choose whether they want to have either the party name or party abbreviation appear on ballot papers next to the candidate’s name.)

 

6.         In determining the length of a party name or abbreviation, the AEC will carry out a letter count.  Punctuation, such as a comma, hyphen, apostrophe or full stop will count as one character, quotation marks will count as two characters.  Spaces between words will not be counted, however, spaces within words being used, for example, in lieu of a hyphen, will count as one character (eg. the space in ‘co ordinator’ would count as one letter making a total of 12 characters).

 

7.         The amendment is also to apply to all abbreviations on the current Register.  Parties whose abbreviations do not comply with the amended legislation, will be given a period of six months (not including any intervening election period) in which to comply.  Failure to comply within the specified period will result in the AEC removing the abbreviation from the Register of Political Parties.  Parties would be notified accordingly.

 

8.         This amendment gives effect to recommendation 53 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 2, 16 to 19 and 81 - Power to refuse to include in the Roll inappropriate names

 

9.         The proposed amendments will insert new provisions that will give Divisional Returning Officers (DROs) and Australian Electoral Officers (AEOs) the power to reject a claim for enrolment, or change to enrolment, made under either Part VII or Part VIII of the CEA, under a name which is frivolous, fictitious, offensive or obscene etc. 

 

10.       There has been an increasing tendency towards people using names which have electoral and political, and in some cases commercial, significance for enrolment and nomination.  The placement of enrolled electors on the electoral roll or candidates names on ballot papers, was never intended to give electors or candidates free publicity for the particular cause they espouse or business that they run.  This is more appropriately done through advertising or the distribution of how-to-vote material.  These amendments will allow the AEC discretion not to include on the electoral roll, and therefore ballot papers, assumed names of dubious origin.  The amendments will also allow that names which are designed to confuse the public, such as those using the word independent or the name of another organisation or body, can be refused.  They will also allow the AEC to refuse names which are nonsensical such those using symbols or numbers (other than, for example, John Smith III).  The AEC will have the discretion to determine whether allowing an elector to enrol under a particular name would be contrary to the public interest.

 

11.       The provision will also give DROs and AEOs the power to review existing names on the roll and replace any that do not meet the new requirements.  The name would be replaced with the last appropriate name under which the person was enrolled.  If the person had not previously been enrolled under an appropriate name, the DRO or AEO would seek written advice from the elector as to the last appropriate name by which the person had been generally known in the community (documentation would need to be provided by the person to support the use of this name).  If the elector complies with the request and the DRO or AEO is satisfied that the name meets the new requirements, the DRO or AEO will be required to have the elector’s enrolment altered to replace the unacceptable name with the acceptable name.  If the elector does not comply with the request, then the DRO or AEO will be required to have the elector’s name removed from the roll and notify the elector accordingly.

 

12.       Decisions made by DROs under these provisions will be reviewable by the relevant AEO and decisions made by AEOs will be reviewable by the Administrative Appeals Tribunal (or Administrative Review Tribunal).

 

13.       This amendment gives effect to recommendations 8 and 10 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 i tems 3, 4, 6 and 14 - Enrolled voters leaving Australia and Eligibility of spouse or child of eligible overseas elector

 

14.       These proposed amendments will provide that an application for registration as an eligible overseas elector is to be made in the approved form and signed by the elector, rather than just made in writing.  Further, an application for extension of registration as an eligible overseas elector, or as a spouse or child of an eligible overseas elector, will be required to be made in writing and signed by the elector, rather than just made in writing.

 

Schedule 1 i tem 5 - Enrolled voters leaving Australia

 

15.       The proposed amendment will provide that an application for registration as an eligible overseas elector, if made after departure from Australia, is to be made within two years of departure, rather than one year.  This will then be consistent with the provisions relating to enrolment from outside Australia, which currently allow applications to be made within the period of two years after departure.

 

16.       This amendment gives effect to recommendation 4 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 i tems 7, 8, 11 and 15 - Enrolment from outside Australia, Eligibility of spouse or child of eligible overseas elector and Itinerant electors

 

17.       The proposed amendments will provide that an application for enrolment from outside Australia, as a spouse or child of an eligible overseas elector, or as an itinerant elector is to be made in the approved form, signed by the elector and witnessed by a qualified person, rather than just made in writing.

 

Schedule 1 i tems 9 and 12 - Enrolment from outside Australia and Eligibility of spouse or child of eligible overseas elector - alternative witnessing arrangements

 

18.       The proposed amendments will provide an alternative to the requirement to have an application for enrolment from outside Australia, or as a spouse or child of an eligible overseas elector, witnessed by a qualified person.  As it may be difficult for an elector who is overseas to find a person qualified to witness their enrolment, the elector will be able to verify their identity by lodging, along with their enrolment form, a certified copy of specified parts of their current passport and a statement explaining why they were unable to find a qualified witness.

 

19.       This amendment gives effect to recommendation 5 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 i tems 10 and 13 - Enrolment from outside Australia and Eligibility of spouse or child of eligible overseas elector - decision to reject

 

20.       The proposed amendments will provide that an AEO or DRO must notify an applicant in writing of a decision to reject his or her enrolment on the basis that it does not meet the witnessing requirements and has not been ‘saved’ by proposed new subsections 94A(2A) or 95(2A), which set out the alternative witnessing arrangements, as the case may be. 

 

Schedule 1 i tems 20 and 21 - Review of eligibility of parties to remain in the Register

 

21.       The proposed amendments insert new provisions to provide the AEC with a power to review, at any time other than during an election period, the eligibility of political parties to remain on the Register.  Such reviews are the sole effective means of ensuring that only entitled political parties remain registered and enjoy the benefits of federal registration.  Whilst the AEC has conducted such reviews in the past, there has been no express legislative authority to do so and parties could refuse to cooperate with such reviews or fail to provide material relevant to the review to the AEC.  This amendment will ensure that the AEC has the express power to conduct such reviews so that it can guarantee the integrity of the Register of Political Parties.

 

22.       In reviewing the Register, the AEC may seek certain information from parties, which must be provided to the AEC within two months, or such longer period as the AEC approves.  Failure, by a party, to comply with the AEC’s request for information may lead to deregistration. 

 

23.       This amendment gives effect to recommendation 54 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 i tem 22 - Refund of nomination deposits

 

24.       The proposed amendment will provide that the AEC is to refund a Senate nomination deposit, if it was not paid by the candidate, to the person who paid it, or to a person authorised in writing by the person who paid it.  Currently, the CEA requires that the refund be paid to the candidate, or a person authorised in writing by the candidate.

 

25.       This amendment gives effect to recommendation 15 of the JSCEM Report on the 1998 Federal Election.

 



Schedule 1 i tem 23 - Withdrawal of consent to nomination - substitution of candidates

 

26.       The proposed amendment will provide that where a candidate who was part of a bulk nomination withdraws his or her consent to nomination prior to the close of nominations, then the withdrawal does not affect the rest of the bulk nomination and the registered officer of the party may amend the nomination (in the approved form) by substituting another candidate, at any time up until the close of nominations.

 

27.       This amendment gives effect to recommendation 16 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 i tem 24 - Death of candidate after nomination

 

28.       The proposed amendment will provide that where a candidate who was part of a bulk nomination dies before the close of nominations, then the death of the candidate does not affect the rest of the bulk nomination and the registered officer of the party may amend the nomination (in the approved form) by substituting another candidate, at any time up until the close of nominations in the relevant Division (which would be extended for a further 24 hours in accordance with subsection 156(2) of the CEA).

 

29.       This amendment also gives effect to recommendation 16 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 25, 26, 27, 29, 76 and 78;  Schedule 2 items 8 , 9, 10, 12, 37 and 39 - Applications for postal vote, Issue of certificate and ballot papers, and Postal voting

 

30.       The proposed amendments will provide an alternative to the requirement to have a postal vote application (PVA) or a postal vote certificate (PVC) witnessed by a qualified person, in the case where the PVA or PVC is completed by an elector outside Australia.  As it may be difficult for an elector who is overseas to find a qualified person to witness their PVA or PVC, the elector will be able to verify their identity by lodging, along with their PVA or PVC, a certified copy of specified parts of their current passport and a statement explaining why they were unable to find a qualified witness.

 

31.       A PVC completed in accordance with this provision is deemed to have been witnessed as required and treated accordingly during the preliminary scrutiny of declaration votes to determine whether the vote should be counted.

 

32.       This amendment gives effect to recommendation 5 of the JSCEM Report on the 1998 Federal Election.

 



Schedule 1 item 28 and Schedule 2 Item 11 - Access to an electronic list of postal vote applicants and Restrictions on disclosure of information

 

33.       The proposed amendments will insert new sections 189A and 189B to the CEA and sections 62A and 62B to the RMPA to allow the AEC to provide, as an alternative to physical inspection, an electronic list of the names, claimed enrolled addresses and dates of birth of postal vote applicants to candidates and registered political parties.  House of Representatives candidates will be entitled to seek access to an electronic list for the Division in which they stood, Senate candidates will be entitled to seek a list for the State/Territory in which they stood and registered political parties will be entitled to seek a list for the States/Territories in which they are organised.  In the case of a referendum that is held separately from a general election, members, Senators and registered political parties will be able to seek access on the basis of Division represented or State/Territory represented or State/Territory organised in, as the case may be.

 

34.       The same end-use restrictions that currently apply to electoral roll information provided in electronic format to members, Senators and registered political parties will apply to electronic lists of postal vote applicants.

 

35.       Further there will be penalties for misuse or commercial use of electronic lists of postal vote applicants commensurate with those that apply to misuse or commercial use of electoral roll information provided in electronic format.

 

36.       This amendment gives effect to recommendation 12 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 30, 31 and 34 - Group voting tickets and individual voting tickets

 

37.       The proposed amendments will provide that grouped or individual Senate candidates who have lodged a group voting ticket (GVT) or an individual voting ticket (IVT) statement with the AEC may amend, withdraw or replace the statement at any time up until the closing time for lodging of such statements.

 

38.       This amendment gives effect to recommendation 14 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 item 32, 33 and 36 - Group voting tickets to be displayed

 

39.       The proposed amendments will allow the AEC to provide a poster or a pamphlet(s) setting out the GVTs and IVTs.  The order of the GVT and IVT statements in the pamphlet is to be the same as the order of groups on the ballot paper (similar to the requirement for the order on the poster), with each GVT and IVT starting on a separate page and the tickets lodged by the same group or individual on consecutive pages.

 

40.       This amendment will give DROs the option of providing a GVT pamphlet, rather than a poster where convenient.

 

41.       This amendment gives effect to recommendation 43 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 35, 74 and 75;  Schedule 2 items 2, 3, 35 and 36 - Ballot papers to be initialled

 

42.       The proposed amendments will amend section 215 of the CEA and section 26 of the RMPA to provide that ballot papers, including photocopied ballot papers are to be initialled on the front top right hand corner.  Forms E and F of Schedule 1 of the CEA and Forms B and C of Schedule 1 of the RMPA, which show the form of the ballot papers, are amended to include a circle on the front top of the ballot paper where issuing officers will be required to place their initials.

 

43.       This amendment gives effect to recommendation 34 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 37 to 40;  Schedule 2 items 4 to 7 - Compulsory voting

 

44.       The proposed amendments will amend section 245 of the CEA and section 45 of the RMPA to allow the AEC to either post, or arrange for the delivery of, non-voter penalty notices to electors at the latest known address of the elector.  This will make the sections consistent throughout as to how and where these notices are to be sent to electors.

 

Schedule 1 items 41 to 43;  Schedule 2 items 13 and 14 - Result of the polling in Antarctica

 

45.       The proposed amendments remove the requirement that votes cast by electors in Antarctica, and transmitted to the AEO for Tasmania, are to be treated as postal votes.  This reflects the fact that Antarctic electors cast their vote by attendance at an Antarctic station, which is a polling booth for the purpose of the election.  Antarctic electors do not make a postal vote application.

 

46.       This amendment gives effect to recommendation 24 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 item 44 - Declaration of the poll

 

47.       The proposed amendment will allow DROs to hold the declaration of the poll for their Division at a place other than the place where nominations were required to be lodged.  The AEO for the relevant State or Territory must approve the holding of the declaration of the poll at the alternative place.  It is sometimes the case that there is insufficient room at a DROs office to accommodate the number of people wishing to attend the declaration of the poll.  A similar amendment was made in 1998 to allow the draw for the positions on the Senate ballot paper and the declaration of the Senate poll to be held at an alternative location.

 

48.       This amendment gives effect to recommendation 41 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 item 45 - Annual returns of income and expenditure of Commonwealth Departments

 

49.       The proposed amendment will repeal section 311A of the CEA.  Section 311A was inserted by an Opposition amendment to section 20 of the Political Broadcasts and Political Disclosures Act 1991.  The AEC has no role in administering this provision other than as a reporting agency like any other.  The Joint Committee of Public Accounts and Audit (JCPAA) is responsible, under sections 63 and 70 of the Public Service Act 1999, for approving guidelines for annual reports of departments and agencies.  In the light of this, it would be more appropriate for the JCPAA to review the continuing relevance of and need for any continuing similar requirements as part of its broader responsibility for annual report requirements.

 

50.       This amendment gives effect to recommendation 48 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 46 to 49;  Schedule 2 items 15 to 17 - Printing and publication of electoral advertisements, notices etc

 

51.       The proposed amendments will amend section 328 of the CEA and section 121 of the RMPA to provide that a full street address, including suburb or locality must be given for authorisation purposes.  The AEC often receives enquiries as to what specifically an authorisation address must include and complaints that people authorising material could not be contacted as the address was incomplete.  The address must be complete and include such things as a street number, habitation/property name, block number for apartment blocks and so on.

 

52.       This amendment gives effect to recommendation 18 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 50 to 55 and 57 to 73;  Schedule 2 items 18 to 34 - The Court of Disputed Returns and Injunctions - Federal Court

 

53.       The proposed amendments will remove references to the Supreme Court of a State or Territory in sections 354 and 383 of the CEA and section 139 of the RMPA and replace them with references to the Federal Court of Australia.  A number of the amendments are consequential.

 

54.       The CEA was written before the establishment of the Federal Court.  It is appropriate that injunction applications relating to federal elections be decided by the Federal Court of Australia.  A practical advantage of such a change would be that similar injunction applications could be heard simultaneously in the one court venue and that decisions are more likely to show greater consistency.  For similar reasons, the High Court, sitting as the Court of Disputed Returns, should remit a federal election petition to the Federal Court only.

 

55.       This amendment gives effect to recommendation 56 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 item 56 - Institution of proceedings for offences

 

56.       The proposed amendment will repeal section 382 of the CEA. This provision no longer performs any sensible function since the establishment of the Commonwealth Director of Public Prosecutions, with which the AEC routinely liaises on possible offences and prosecutions under the CEA, in accordance with the “ Prosecution Policy of the Commonwealth ”.

 

57.       This amendment gives effect to recommendation 57 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 1 items 75 and 77;  Schedule 2 items 38 and 40 - Rules for the preliminary scrutiny of declaration votes (Schedule 3 of CEA, Schedule 4 of the RMPA) - multiple declaration votes

 

58.       The proposed amendments will provide that where a DRO detects, during the preliminary scrutiny, more than one declaration envelope seeming to be from the same elector, only the first vote received by the DRO, if that can be determined, is to be included in the further scrutiny.  The first step in the checking process would be for the DRO to determine whether the votes had in fact been cast by the same elector by carrying out a signature check.  Any votes found not to have been signed by the elector would be excluded first (unless the elector meets the provisions of subsection 98(3) of the CEA).  If it cannot be determined which was the first vote cast by the elector, the DRO is to decide which vote is to be counted.  If it is discovered that a declaration vote cast by the elector has already been included in the further scrutiny, no further votes of the elector are to be counted.

 

59.       Follow up action would be taken in respect of any possible breaches of offence provisions.

 

60.       This amendment gives effect to the government response to recommendation 29 of the JSCEM Report on the 1998 Federal Election.

 

Schedule 2 item 1 - Interpretation

 

61.       The proposed amendment will amend the definition of “authorized witness” in subsection 3(1) of the RMPA to replace “part of the Queens dominions” with “Commonwealth country”.  This amendment was to have been made as part of the Electoral and Referendum Amendment Act 1998 .  However, it was incorrectly described and therefore did not take effect.