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Electoral and Referendum Legislation Amendment Bill 2007

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2004-2005-2006

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

ELECTORAL AND REFERENDUM LEGISLATION

AMENDMENT BILL 2006

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

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

the Hon Gary Nairn MP)

 

 



ELECTORAL AND REFERENDUM LEGISLATION AMENDMENT BILL 2006

 

OUTLINE

 

The Electoral and Referendum Legislation Amendment Bill 2006 (the Bill) contains measures arising from the Government’s response to the Joint Standing Committee on Electoral Matters’ Report: The 2004 Federal Election: Report of the Inquiry into the Conduct of the 2004 Federal Election and Matters Related Thereto (the JSCEM’s report).  The Government’s response was tabled in the Parliament on 31 August 2006.  The Bill amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and follows reform measures that were passed by the Parliament on 21 June 2006 in the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (the Electoral Integrity Act).

 

The Bill contains provisions that will:

·     provide for a trial of electronically assisted voting for sight-impaired people;

·     provide for a trial of remote electronic voting for Australian Defence Force (ADF) members and defence civilians serving outside Australia;

·     specifically enable members of the ADF and Australian Federal Police (AFP) personnel serving outside Australia, and persons registered as eligible overseas electors, to apply for registration as general postal voters;

·     provide that the deadline for postal vote applications is 6.00pm on the Thursday prior to polling day.  The Australian Electoral Commission (AEC) will not be required to post or deliver postal voting material to those electors whose postal vote applications are received after that time.  The AEC will be required to make reasonable efforts to contact applicants whose postal vote applications are received after the deadline to advise them of the need to vote by other means;

·     amend arrangements for the delivery of postal voting material by the AEC;

·     expand the range of AEC officers who can receive completed postal vote envelopes;

·     amend the requirements for the establishment of pre-poll voting centres to enable them to be quickly established by the AEC in exceptional circumstances ;

·     amend provisions relating to enrolment from outside Australia to allow applicants the option of providing an Australian passport number, rather than a current driver’s licence number, to satisfy the requirements of the proof of identity scheme established by the Electoral Integrity Act; and

·     repeal section 350 of the Electoral Act which relates to defamation of electoral candidates.

 

FINANCIAL IMPACT STATEMENT

 

The Australian Government will provide additional funding to the AEC with a fiscal balance impact of $5.0 million over five years from 2006-07 (including $2.7 million in capital).  The majority of the funding is being provided in 2006-07 ($3.8 million).

 

The funding will be used for the purchase of computer hardware and software related to the trial of electronically assisted voting for sight-impaired people and for the trial of remote electronic voting by ADF personnel serving overseas.  Funding will also be used for the delivery of postal voting material to postal vote applicants by means other than post.

 

 

 



ELECTORAL AND REFERENDUM LEGISLATION AMENDMENT BILL 2006

 

NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.                   This clause provides for the short title of the Act.

 

Clause 2 - Commencement

 

2.                   This clause provides that, except for Part 1 of Schedule 3, all items commence upon Royal Assent.  Part 1 of Schedule 3 commences on a single day to be fixed by Proclamation or, if not proclaimed earlier, six months following the date of Royal Assent.

 

Clause 3 - Schedule(s)

 

3.                   This clause provides that each Act specified in the Schedules is amended or repealed as set out in the Schedules, and any other items in the Schedules have effect according to their terms.

 

Schedule 1 - Postal voting

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 4(1)

 

4.                   This item provides for the definition of ‘AFP officer or staff member’.  The insertion of this definition is consequential to item 7 which expands the grounds for application as a general postal voter to include enrolled AFP officers and staff members serving outside Australia.

 

Item 2 - Subsection 4(1)

 

5.                   This item provides for the definition of ‘capital city office’ to be included in subsection 4(1) as a consequence of item 16 which expands the range of AEC personnel who may receive completed postal voting envelopes to include particular AEC officers and employees at capital city offices. 

 

Items 3 and 4 - Subsection 4(1)

 

6.                   These items provide for the definition of ‘defence civilian’ and ‘defence member’.  The insertion of these definitions is consequential to item 7 which expands the grounds for application as a general postal voter to include enrolled defence civilians and enrolled defence members serving outside Australia.

 

Item 5 - After subsection 90B(8)

 

7.                   This item inserts a provision to require that no information that, to the knowledge of the AEC, would disclose specified details of ADF or AFP personnel who are serving overseas be made publicly available or otherwise disclosed by the AEC.  This is intended to protect ADF and AFP operational security and personnel, and is consequential to the amendment at item 7.

 

Item 6 - Subsection 184(5)

 

8.                   Part XV of the Electoral Act provides that electors who for various reasons cannot attend a polling place on polling day in the State or Territory for which they are enrolled may apply for a postal vote.  The Divisional Returning Officer (DRO) or Assistant Returning Officer (ARO) will send to postal vote applicants postal voting material as specified in existing subsection 188(1).  This includes a postal vote certificate and postal ballot papers which must be completed on, or before, polling day.  The postal voting material should therefore be despatched to postal voters within a reasonable time before polling day.  

 

9.                   Subsection 184(5) currently provides that an application shall be regarded as not having been made if it reaches the relevant AEC officer after 6.00pm on the day before polling day (which would be a Friday).  Item 6 repeals subsection 184(5) and substitutes a new subsection to provide that the deadline by which postal vote applications must be received in order to be processed is 6.00pm on the Thursday that is two days before polling day.  This amendment is intended to enhance the prospect of postal voters receiving postal voting material in time for completion on, or before, polling day. 

 

10.               The item also inserts a new subsection 184(6) to provide that, for postal vote applications received after this new deadline, the AEC is required to make reasonable efforts to contact those applicants to advise them that their applications have not met the deadline and of the need for them to vote by other means.

 

11.               This item gives effect to the Government’s response to part of recommendation 9 of the JSCEM’s report.

 

Item 7 - At the end of subsection 184A(2)

 

12.               This item inserts three new paragraphs into subsection 184A(2) to enable enrolled defence members, defence civilians, AFP officers or AFP members of staff who will be serving outside Australia, and electors registered as eligible overseas electors, to also register as general postal voters.  For the period of their registration as a general postal voter, which is intended to be no longer than the period of their service or residence outside Australia, these electors will automatically be sent ballot papers for each election and referendum without first having to lodge a postal vote application.

 

13.               This item gives effect to the Government’s response to part of recommendation 9 of the JSCEM’s report.

 

Item 8 - At the end of section 184A

 

14.               Item 8 adds new subsection 184A(5) allowing defence members, defence civilians, and AFP officers or staff members, who will be serving outside Australia, to apply for registration as general postal voters before leaving Australia.

 

15.               The item also adds new subsection 184A(6) to enable regulations to be made to clarify whether applicants are considered to be serving outside Australia for the purposes of satisfying the grounds for registration in new subsections 184A(2)(i) or (j).

 

Item 9 - Subsection 185(1)

 

16.               This item makes a consequential amendment as a result of the insertion of a new subsection by item 10.

 

Item 10 - After subsection 185(1)

 

17.               This item inserts subsections 185(1A) and 185(1B) to provide that the general postal voter registration of relevant ADF and AFP members who applied to become general postal voters before leaving Australia, as allowed by item 8, does not take effect until they have left Australia.  The item provides grounds that the DRO may consider in determining that the applicant has left Australia.  This will ensure that these categories of applicants will only be considered to be general postal voters for the period of their overseas service.

 

Item 11 - After subsection 185(4)

 

18.               This item inserts a provision, similar to item 5, that prohibits a DRO or an ARO from including in the Register of General Postal Voters information that, to the knowledge of the DRO or ARO, would disclose specified details of AFP or ADF overseas service.  This is intended to protect the security of the deployment and personnel.

 

Items 12 and 13 - Subsections 188(1) and 188(2)

 

19.               Section 188 currently provides for the delivery of postal voting material specified in subsection 188(1), which includes a postal vote certificate and postal ballot papers, in response to postal vote applications that have been received by the DRO or the ARO.  Subsection 188(2) currently provides that where postal vote applications have been received after the last mail clearance at the nearest post office on the last Thursday before polling day, the AEC shall not post the postal voting material to those applicants.

 

20.               Item 12 amends subsection 188(1) to provide that postal voting material will be sent or delivered to postal vote applicants whose applications are received by the new deadline of 6.00pm on the Thursday prior to polling day.  The posting or delivery of the postal voting material will be in accordance with the requirements of new subsection 188(2). 

 

21.               In addition to providing a clearer deadline of 6.00pm, rather than the last mail clearance (which may vary between post offices), this amendment will enable a greater period of time for applicants to lodge their applications, for example, for applications delivered by hand or courier.

 

22.               Item 13 repeals subsection 188(2) and substitutes it with a new provision that sets out the delivery requirements in relation to postal vote applications received by the AEC by a specified time.  The amendments provide:

·                      for postal vote applications received up to and including 6.00pm on the Friday eight days before polling day, the AEC is required to despatch postal voting material to the applicant by post or other appropriate means (not being electronic means).  However if, in accordance with the approved form, the applicant has specified another means of delivery (not being electronic means) which the DRO or ARO considers to be reasonable and practicable, then the AEC is required to despatch postal voting material by those specified means; and

·                      for postal vote applications received after 6.00pm on the Friday eight days before polling day and up to and including 6.00pm on the Thursday before polling day (the new deadline), the AEC is required to despatch the postal voting material to the applicant by the most reasonable and practicable means (not being electronic means).

 

23.               This amendment is intended to enhance the prospect of applicants receiving postal voting material in time to complete and return for inclusion in the scrutiny.

 

24.               Due to the operation of item 6, a note to item 13 reiterates that postal vote applications received after 6.00pm on the Thursday before polling day fail to meet the deadline and that no postal voting material is required to be sent to those applicants under subsection 188(1).

 

25.               These items give effect to the Government’s response to part of recommendation 9 of the JSCEM’s report.

 

Item 14 - At the end of paragraph 194(2)(c) 

 

26.               This item makes a consequential amendment as a result of the insertion of a new subsection by item 16.

 



Item 15 - Paragraph 194(2)(e)

 

27.               This item is consequential to the amendment at item 16.  Mobile polling team leaders and some electoral visitors are deemed to be presiding officers under subsection 225(6) or paragraph 227(8)(c) of the Electoral Act.  However, paragraph 194(2)(e) applies to postal vote envelopes received by presiding officers on polling day only.  Item 15 qualifies the definitions of ‘presiding officer’ in paragraph 194(2)(e) to specifically exclude electoral visitors and mobile polling team leaders.  New subsections 194(2)(f) and 194(2)(g), which are added by item 16, provide that electoral visitors and mobile polling team leaders can receive postal vote envelopes without limiting the time period to polling day.

 

28.               Item 15 is also linked to item 22 which outlines the various requirements and procedures for dealing with postal vote envelopes received by the range of AEC personnel.

 

Item 16 - At the end of subsection 194(2)

 

29.               The Electoral Act currently provides that an elector who casts a postal vote shall post or deliver the completed postal voting envelope, on which the postal vote certificate is printed, to the appropriate DRO.  Where it is unlikely that the completed postal voting envelope would reach the appropriate DRO within 13 days after polling day, the Electoral Act currently allows for the envelope to be returned to other AEC officers.  These other officers are any DRO, an ARO outside Australia, a pre-poll voting officer or a polling place presiding officer.

 

30.               To provide postal voters with greater flexibility and options for returning their postal voting material in time to be included in the scrutiny, this item expands the range of AEC officers who can receive completed postal voting envelopes.  Whilst engaging in their normal work, these officers will be able to receive postal voting envelopes where it is unlikely that the appropriate DRO will receive them within 13 days after polling day.  The expanded range includes electoral visitors at hospitals and prisons, mobile polling team leaders, and certain office holders and ongoing employees at the AEC’s capital city offices. 

 

31.               This item gives effect to part of the Government’s response to part of recommendation 9 of the JSCEM’s report.

 

Items 17 and 18 - Subsection 194(3)

 

32.               These items amend subsection 194(3) as a consequence of item 16.

 



Item 19 - Subsection 195A(1)

 

33.               This item amends subsection 195A(1) as a consequence of item 16.  It extends the definition of ‘officer’ for this section to include the expanded range of AEC officers who can receive postal voting envelopes.  The item also qualifies the definition of ‘presiding officer’ to specifically exclude electoral visitors or mobile polling team leaders who are deemed to be presiding officers as outlined at paragraph 27 above.

 

Item 20 - Paragraph 195A(2)(d)

 

34.               This item amends paragraph 195A(2)(d) relating to procedures for dealing with postal voting envelopes and certificates as a consequence of items 16 and 22.

 

Item 21 - Paragraphs 195A(2)(f) and (g)

 

35.               This item repeals paragraphs 195A(2)(f) and (g) regarding processes for DROs or officers to deal with postal voting envelopes and inserts a new paragraph 195A(2)(f) to provide for postal voting envelopes to be dealt with in accordance with new subsections 195A(4), 195A(5) and 195A(6).

 

Item 22 - At the end of section 195A

 

36.               This item amends section 195A as a consequence of items 16 and 20.  The amendments set out the requirements for dealing with postal voting envelopes by the range of different AEC officers who receive completed postal voting envelopes.  The envelope received must be endorsed by the officer who receives it and must be kept in a ballot box by the AEC and eventually dealt with in accordance with section 228.

 

37.               A ballot box will be made available for storing postal voting envelopes received by AEC employees at capital city offices by the DRO for the Division in which the capital city office is located.  This DRO will need to instruct the AEC employees at the capital city offices on how this ballot box is to be delivered or collected.

 

38.               This item specifically expresses that the instructions of the DRO to an AEC officer or employee at a capital city office are not legislative instruments within the meaning of the Legislative Instruments Act 2003 .  This provision is merely declaratory and has been included in the Bill to assist the reader.

 

Item 23 - Paragraph 228(2)(a)

 

39.               This item makes a consequential amendment to paragraph 228(2)(a) as a result of items 16 and 22.  As electoral visitors and mobile team leaders are no longer deemed to be presiding officers for the purpose of dealing with postal voting envelopes, paragraph 228(2)(a) needs to be amended to allow the ARO to be able to accept records forwarded by the expanded range of officers. 

Item 24 - After subsection 228(3)

 

40.               This item inserts new subsection 228(3A) to provide procedures for the relevant DRO to follow when they obtain ballot boxes under new paragraph 195(6)(b) containing postal voting envelopes received at capital city offices.  The procedures are consistent with other procedures in section 228, and are necessary due to the expansion of AEC personnel who may receive postal voting envelopes.

 

Referendum (Machinery Provisions) Act 1984

 

Item 25 - Subsection 3(1)

 

41.               This item inserts a definition of ‘capital city office’ into subsection 3(1) of the Referendum Act and is consequential to the amendment at item 33 which expands the range of AEC personnel who may receive completed postal voting envelopes to include particular AEC officers and employees at capital city offices.

 

Item 26 - Paragraph 46A(2)(a)

 

42.               This item makes a consequential amendment to paragraph 46A(2)(a) of the Referendum Act in the same way as item 23 amends the Electoral Act.

 

Item 27 - After subsection 46A(3)

 

43.               This item inserts new subsection 46A(3A) into the Referendum Act to provide procedures for the relevant DRO to follow when they obtain ballot boxes under new paragraph 67(6)(b) containing postal voting envelopes received at capital city offices.  The procedures are the same as those at item 24 which amends the Electoral Act.

 

Item 28 - Subsection 55(5)

 

44.               This item makes the same amendments to section 55 of the Referendum Act for postal vote applications received for referendums as item 6 for postal vote applications received for elections.  This will ensure consistency between procedures for applications for postal votes for elections and referendums.

 

Items 29 and 30 - Subsections 61(1) and 61(2)

 

45.               Section 61 of the Referendum Act provides for the delivery of postal voting material for a referendum in response to postal vote applications that have been received by the DRO or the ARO.  Items 29 and 30 make the same amendments for the delivery of postal voting material for a referendum as items 12 and 13 do for an election.  This will ensure consistency in the delivery of postal voting material for elections and referendums.

 



Item 31 - At the end of paragraph 65(2)(c)

 

46.               This item makes a consequential amendment as a result of the insertion of a new paragraph by item 33.

 

Item 32 - Paragraph 65(2)(e)

 

47.               This item makes a consequential amendment due to item 33 in the same way as item 15 does as a result of item 16. 

 

Item 33 - At the end of subsection 65(2)

 

48.               This item expands the range of AEC officers and employees who can receive completed postal voting envelopes for a referendum in the same way as item 16 does for elections.

 

Items 34 and 35 - Subsection 65(3)

 

49.               These items amend subsection 65(3) as a consequence of item 33.

 

Item 36 - Subsection 67(1)

 

50.               This item amends subsection 67(1) as a consequence of item 33.  It extends the definition of ‘officer’ for this section to include the expanded range of AEC officers who can receive postal voting envelopes and qualifies the definition of ‘presiding officer’ in the same way as item 19 does for the Electoral Act.

 

Item 37 - Paragraph 67(2)(d)

 

51.               This item amends paragraph 67(2)(d) as a consequence of items 33 and 39.

 

Item 38 - Paragraphs 67(2)(f) and (g)

 

52.               This item repeals paragraphs 67(2)(f) and (g) regarding processes for DROs or officers dealing with postal voting envelopes and inserts a new paragraph 67(2)(f) providing that postal voting envelopes are to be dealt with under new subsections 67(4), 67(5) and 67(6).

 

Item 39 - At the end of section 67

 

53.               This item amends section 67 as a consequence of items 33 and 37.  The amendments set out the requirements for the range of different AEC officers who receive completed postal voting envelopes.  These requirements are consistent with the previous paragraphs of subsection 67(2), which were amended by item 38, in that the envelope received must be endorsed by the officer who receives it and must be kept in a ballot box by the AEC and eventually dealt with in accordance with section 46A.

 

54.               A ballot box will be made available for storing postal voting envelopes received by AEC employees at capital city offices by the DRO for the Division in which the capital city office is located.  This DRO will need to instruct the AEC employees at the capital city offices on how this ballot box is to be delivered or collected.

 

55.               This item specifically expresses that the instructions of the DRO to an AEC officer at a capital city office are not legislative instruments within the meaning of the Legislative Instruments Act 2003 .  This provision is merely declaratory and has been included in the Bill to assist the reader.

 

Schedule 2 - Trials of electronic voting methods

 

Commonwealth Electoral Act 1918

 

Item 1 - After Part XVA

 

56.               This item inserts new Part XVB into the Electoral Act entitled ‘Trials of electronic voting methods’ and consists of two Divisions.  Division 1 provides for a trial of electronically assisted voting for sight-impaired people and Division 2 provides for a trial of remote electronic voting for defence personnel serving outside Australia.

 

57.               Division 1 gives effect to the Government’s response to recommendations 27, 41 and 42 of the JSCEM’s report, while Division 2 gives effect to the Government’s response to recommendation 43 of the JSCEM’s report.

 

Division 1 - Trial of electronically assisted voting for sight-impaired people

 

New section 202AA - Definitions

 

58.               This section provides for the definition of ‘sight-impaired person’ and ‘vote record’ for Division 1.

 

New section 202AB - Regulations may provide for voting by an electronically assisted voting method

 

59.               New section 202AB provides for a trial of electronically assisted voting to be implemented by regulations to enable sight-impaired people to cast a secret vote at specified locations.  The trial will take place at the next federal election held after the section commences.

 



60.               Although regulations may be made to cover other issues, new section 202AB sets out a number of matters that the regulations may address.  These include the actual voting method itself, which may include matters such as how a person indicates a vote on an electronic voting machine and the form of output from the machine. 

 

61.               Regulations may also be made to address general voting issues such as the process of applying for an electronically assisted vote, how assistance is given to people using the electronically assisted method, how the output is treated once the person has voted, and ensuring that a person can vote in private and that the ballot is secret.  Officers of the AEC will provide assistance to sight-impaired people to ensure that the elector is familiar with the voting method before the elector casts an independent secret vote.

 

62.               The regulations may also provide for which persons may use the electronically assisted voting method.  It is intended that following a comprehensive advertising campaign, a person would request to use the electronic voting method at the polling place.  In some situations, an AEC officer may make known to an elector that such a facility is available.

 

63.               The regulations will also determine where and when a person may cast an electronically assisted vote.  It is intended that electronically assisted voting will be available at 30 locations utilising the pre-poll voting centres established to accept votes before polling day.  This will allow a sight-impaired person to cast an electronically assisted vote on, or before, polling day.

 

64.               The regulations may also provide for other matters relating to the integrity of the use of the electronically assisted voting method.

 

65.               New section 202AB also requires the electronically assisted voting method to provide a person using the method with the same information and the same voting options as a person marking his or her traditional paper ballot paper for a House of Representatives or Senate election.  Accordingly, the electronic voting machine will need to be able to display the candidates’ names, with any appropriate party affiliation, in the same order as a traditional paper ballot paper.

 

66.               The Electoral Act currently provides for a range of offences in relation to voting, such as those in Part XVA for pre-poll voting.  Consistent with this approach, new section 202AB provides that regulations may provide for offences, and penalties for those offences not exceeding 50 penalty units, in relation to electronically assisted voting.  New section 202AB also clarifies that the electronically assisted voting trial does not authorise any person to vote more than once at an election.

 



New section 202AC - There must be a record of who has voted using the electronically assisted voting method

 

67.               This section provides that the regulations must provide for a record of each person who has voted using the electronically assisted voting method and that the regulations may specify the information to be included in that record.  Similar provisions exist in the Electoral Act, such as for pre-poll voting, to provide transparency for scrutiny purposes and for compliance with compulsory voting requirements.

 

New section 202AD - There must be a printed record of the vote

 

68.               The proposed method will produce a printed record of the vote that the person has cast.  Once a person has cast an electronically assisted vote, the vote record will be placed in an envelope upon which a completed declaration has been made.  While the vote record will not be capable of identifying the elector, consistent with the process adopted for pre-poll voting, information on the outside of the envelope will enable preliminary scrutiny to take place.

 

69.               To ensure the secrecy of the vote is maintained, the vote record produced at the pre-poll voting office will not be required to be an exact replication of the ballot paper.  However, the vote record must be capable of producing a document, whether it be a replication of the ballot paper or otherwise, that accurately reflects the voter’s intention for scrutiny purposes.

 

70.               New section 202AD provides that regulations must provide for the production of a printed record of the vote that the person has cast and for the vote record to be placed inside the declaration envelope.

 

New section 202AE - How this Act applies in relation to voting using the electronically assisted voting method

 

71.               This section provides that, other than Part XVA and Schedule 2 of the Electoral Act, the Electoral Act applies to electronically assisted voting as if the vote were a pre-poll vote.  This approach has been adopted so that existing general polling provisions of the Electoral Act, such as those relating to the scrutiny and counting of votes, can be utilised for electronic vote records and do not need to be duplicated in the Bill.

 

72.               Part XVA and Schedule 2 of the Electoral Act do not apply to electronically assisted voting as these provisions relate to pre-poll voting.  New section 202AE specifically identifies particular instances where the vote or declaration envelope for electronically assisted voting is to be treated like a vote or declaration envelope for pre-poll voting.  These provisions enable the current polling provisions of the Electoral Act to apply to the envelope and vote created through the electronically assisted voting method.

 

73.               New section 202AE also clarifies that a vote cast by the electronically assisted voting method is taken to satisfy an elector’s right to receive a ballot paper under the Electoral Act.  To ensure that electronically assisted voting procedures mesh smoothly with existing provisions of the Electoral Act, regulations may make additional provisions relating to how the Electoral Act is to apply to electronically assisted voting.

 

New section 202AF - Minister may decide that electronically assisted voting trial is not to proceed

 

74.               This section provides for the Minister to decide in writing that the electronically assisted voting trial for sight-impaired people is not to proceed for any reason.  A decision not to proceed with the trial would take into account consideration of risks to the integrity of the vote, including any software or hardware issues.

 

75.               Any regulations that are in force when, and if, such a decision were made, would cease to have effect.  This allows the greatest flexibility should problems arise once regulations have been made.

 

76.               The Minister’s decision would be a legislative instrument under the Legislative Instruments Act 2003 .  As the reason for not proceeding with the trial would be based on an assessment of the risks to the integrity of the vote, including a software or hardware failure, it would not be appropriate for such a decision to be subject to disallowance by the Parliament.  Therefore, new subsection 202AF(3) provides that section 42 of the Legislative Instruments Act does not apply to an instrument for a decision not to proceed with the trial.

 

Division 2 - Trial of remote electronic voting for defence personnel serving outside Australia

 

New section 202AG - Definitions

 

77.               This section provides for the definition of ‘electronic vote record’ and ‘printed vote record’ for Division 2.

 

New section 202AH - Regulations may provide for remote electronic voting by defence personnel serving outside Australia

 

78.               New section 202AH provides for a trial to be implemented by regulations to enable ADF personnel serving outside Australia at specified locations to vote by a remote electronic voting method.  The trial will take place at the next federal election held after the section commences.

 

79.               Although regulations may be made to cover other issues, new section 202AH sets out a number of matters that regulations may address.  These include the actual voting method itself, such as how a person indicates a vote on an electronic voting machine, a means of verifying the identity of people using the electronic voting machine, ensuring that a person can vote in private and that the ballot is secret.  To assist in verifying the identity of the person using the remote electronic voting method, before a person can use the method he or she will need to register with the AEC as a Remote Electronic Voter. 

 

80.               The regulations will also determine where and when a person may cast a remote electronic vote.  It is intended that remote electronic voting will only be available at locations where the infrastructure is available for the electronic voting machines to operate and where it is safe to do so.  Depending on the availability of the infrastructure, it is intended that a person may cast a vote before polling day as well as on polling day.

 

81.               The regulations may also provide for any other matters related to the integrity of the use of the remote electronic voting method.

 

82.               New section 202AH also requires the remote electronic voting method to provide a person using the method with the same information and the same voting options as a person marking his or her traditional paper ballot paper for a House of Representatives or Senate election.  Accordingly, the electronic voting machine will need to be able to display the candidates’ names, with any appropriate party affiliation, in the same order as a traditional paper ballot paper.

 

83.               The Electoral Act currently provides for a range of offences in relation to voting, such as those in Part XVA for pre-poll voting.  Consistent with this approach, new section 202AH provides that regulations may provide for offences, and penalties for those offences not exceeding 50 penalty units, in relation to remote electronic voting.  New section 202AH also clarifies that the electronically assisted voting trial does not authorise any person to vote more than once at an election.

 

New section 202AI - Regulations must provide for registration of remote electronic voters

 

84.               This section provides that the regulations must provide for which ADF personnel may apply, and the process for applying, for registration as a Remote Electronic Voter.  As noted under section 202AH, registration is one means of assisting to verify the identity of the person using the remote electronic voting method.  New section 202AI also requires regulations to provide for the processing of applications and the cancellation of registration as a Remote Electronic Voter. 

 

85.               New section 202AI provides that the regulations must require a register of registered remote electronic voters to be kept by the AEC.  To protect the security of deployment information, the register will not be publicly available or otherwise disclosed by the AEC.

 

86.               The regulations may also provide for other matters regarding registration of Remote Electronic Voters.

 

New section 202AJ - There must be a record of who has voted using the remote electronic voting method

 

87.               This section provides that the regulations must require a record of each person who has voted using the remote electronic voting method and may specify the information to be included in the record.  Similar provisions exist in the Electoral Act, such as for pre-poll voting, to provide transparency for scrutiny purposes.

 

New section 202AK - Transmission of electronic votes to the Electoral Commission and scrutiny of votes

 

88.               Unlike the provisions for the electronically assisted voting trial for sight-impaired voters, the remote electronic voting method is unlikely to produce a hard copy record of the vote at the place where the vote was cast.  Once the vote is cast, an electronic vote record will be securely stored before being transmitted to the AEC.  Once at the AEC, a printed record of each electronic vote record transmitted to the AEC will be made for scrutiny purposes.  These records must not be capable of identifying the elector.

 

89.               New section 202AK requires regulations to provide for the secure storage and transmission of an electronic vote record, as well as a printed record of each electronic vote record received by the AEC.

 

90.               This section also provides for other issues to be covered by the regulations relating to these matters.

 

New section 202AL - How this Act applies in relation to voting using the remote electronic voting method

 

91.               This section provides that the Electoral Act is to apply to a printed vote record as if it were a vote on a traditional ballot paper.  Similar to the provisions for the electronically assisted voting trial for sight-impaired voters, this approach has been adopted so that existing general polling provisions of the Electoral Act, such as those relating to the scrutiny and counting of votes, can be utilised for electronic vote records and do not need to be duplicated in the Bill.

 

92.               New section 202AL also provides that the requirements of the Electoral Act regarding an elector’s right to receive a ballot paper is satisfied if a person casts a vote using the remote electronic voting method.  The regulations may make additional provisions relating to the application of the Electoral Act to votes cast using the remote electronic voting method.

 



New section 202AM - Minister may decide that remote electronic voting trial is not to proceed

 

93.               This section provides for the Minister to decide in writing that the remote electronic voting trial for the ADF personnel is not to proceed for security or any other reasons.  A decision not to proceed with the trial would take into account consideration of security risks to the vote, including any software or hardware issues. 

 

94.               Any regulations that are in force when, and if, such a decision were made, would cease to have effect.  This allows the greatest flexibility should problems arise once regulations have been made.

 

95.               The Minister’s decision would be a legislative instrument under the Legislative Instruments Act 2003 .  As the reason for not proceeding with the trial would be based on an assessment of the security risks or any other risks to the integrity of the vote, including a software or hardware failure, it would not be appropriate for such a decision to be subject to disallowance by the Parliament.  Therefore, new subsection 202AM(3) provides that section 42 of the Legislative Instruments Act does not apply to an instrument for a decision not to proceed with the trial.

 

Referendum (Machinery Provisions) Act 1984

 

Item 2 - After Part IVA

 

96.               This item inserts into the Referendum Act a new Part to parallel the amendments made to the Electoral Act by item 1 of Schedule 2.  As with the amendments to the Electoral Act, new Part IVB of the Referendum Act is entitled ‘Trials of electronic voting methods’ and consists of two Divisions.  Division 1 provides for a trial of electronically assisted voting at a referendum for sight-impaired people and Division 2 provides for a trial of remote electronic voting at a referendum for defence personnel serving outside Australia.

 

97.               Electronic voting will only be available at a referendum if the referendum is held on the same day as an election at which sight-impaired people, or defence members or defence civilians, may vote electronically.

 

Division 1 - Trial of electronically assisted voting for sight-impaired people

 

New section 73L - Definitions

 

98.               This section provides for the definition of ‘sight-impaired person’ and ‘vote record’ for Division 1.

 



New section 73M - Regulations may provide for voting by an electronically assisted voting method

 

99.               New section 73M provides for a trial of electronically assisted voting to be implemented by regulations to enable sight-impaired people at specified locations to vote in a referendum.  A person may vote in a referendum using an electronic voting method only at the first referendum held after the commencement of this section if the referendum is held on the same day as a general election at which sight-impaired people may vote electronically.

 

100.           Although regulations may be made to cover other issues, new section 73M sets out a number of matters that regulations may address.  These include the actual voting method itself, which may include matters such as how a person indicates a vote on an electronic voting machine and the form of output from the machine.  Regulations may also be made to address general voting issues such as the process of applying for an electronically assisted vote, how assistance is given to people using the electronically assisted method, how the output is treated once the person has voted, and ensuring that a person can vote in private and that the ballot is secret.  Officers of the AEC will provide assistance to sight-impaired people to ensure that the elector is familiar with the voting method before the elector casts an independent secret vote.

 

101.           The regulations will also determine where and when a person may cast an electronically assisted vote.  It is intended that electronically assisted voting for the referendum will be available at the same 30 locations at which people may vote in the election.  This will enable a person to cast an electronically assisted vote on or before voting day for the referendum.

 

102.           The regulations may also provide for which persons may use the electronically assisted voting method.  It is intended that following a comprehensive advertising campaign, a person would request to use the electronic voting method at the polling place.  In some situations, an AEC officer may make known to an elector that such a facility is available.

 

103.           New section 73M also requires the electronically assisted voting method to provide a person using the method with the same information and the same voting options as a person marking his or her traditional paper ballot paper for the referendum.

 

104.           The Referendum Act currently provides for a range of offences in relation to voting, such as those in Part IVA for pre-poll voting.  Consistent with this approach, new section 73M provides that regulations may provide for offences, and penalties for those offences not exceeding 50 penalty units, in relation to electronically assisted voting.  New section 73M also clarifies that the electronically assisted voting trial does not authorise any person to vote more than once at a referendum.

 

New section 73N - There must be a record of who has voted using the electronically assisted voting method

 

105.           This section requires the regulations to provide for a record of each person who has voted using the electronically assisted voting method and may specify the information to be included in the record.  Similar provisions exist in the Referendum Act, such as for pre-poll voting, to provide transparency for scrutiny purposes, and compliance with compulsory voting provisions.

 

New section 73P - There must be a printed record of the vote

 

106.           Unlike other electronic voting methods that store a person’s vote until the close of the poll, the proposed electronically assisted voting method will produce a printed record of the vote that the person has cast.  Similar to pre-poll voting, once a person has cast a vote, the vote record will be placed in an envelope upon which a completed declaration has been made.  While the vote record will not be capable of identifying the elector, consistent with the process adopted for pre-poll voting, information on the outside of the envelope will enable preliminary scrutiny to take place.

 

107.           To ensure the secrecy of the vote is maintained, the vote record produced at the pre-poll voting office will not be required to be an exact replication of the ballot paper.  However, the vote record must be capable of producing a document, whether it be a replication of the ballot paper or otherwise, that accurately reflects the voter’s intention for scrutiny purposes.

 

108.           New section 73P requires regulations to provide for a printed record of the vote the person has cast and for the record to be placed inside the envelope.

 

New section 73Q - How this Act applies in relation to voting using the electronically assisted voting method

 

109.           This section provides that, other than Part IVA and Schedule 3, the Referendum Act applies to electronically assisted voting as if the vote were a pre-poll vote.  This approach has been adopted so that existing general polling provisions of the Referendum Act, such as those relating to the scrutiny and counting of votes, can be utilised for electronic vote records and do not need to be duplicated in the Bill.

 

110.           Part IVA and Schedule 3 of the Referendum Act do not apply to electronically assisted voting as these provisions relate to pre-poll voting.  New section 73Q specifically identifies particular instances where the vote or declaration envelope for electronically assisted voting is to be treated like a vote or declaration envelope for pre-poll voting.  These provisions enable the current polling provisions of the Referendum Act to apply to the envelope and vote created through the electronically assisted voting method.

 

111.           New section 73Q also clarifies that a vote cast by electronically assisted voting is taken to satisfy an elector’s right to receive a ballot paper under the Referendum Act.  To ensure that electronically assisted voting procedures mesh smoothly with existing provisions of the Referendum Act, regulations may make additional provisions relating to how the Referendum Act is to apply to electronically assisted voting.

 

Division 2 - Trial of remote electronic voting for defence personnel serving outside Australia

 

New section 73R - Definitions

 

112.           This section provides for definitions of ‘defence civilian’, ‘defence member’, ‘electronic vote record’, ‘printed vote record’, and ‘registered remote electronic voter’.

 

New section 73S - Regulations may provide for remote electronic voting by defence personnel serving outside Australia

 

113.           New section 73S provides for a trial to be implemented by regulations to enable defence members and defence civilians at specified locations to vote by a remote electronic voting method in a referendum.  A person may vote in a referendum using an electronic voting method only at the first referendum held after the commencement of this section if the referendum is held on the same day as a general election at which ADF personnel may vote electronically.

 

114.           Although regulations may be made to cover other issues, new section 73S sets out a number of matters that regulations may address.  These include the actual voting method itself, such as how a person indicates a vote on an electronic voting machine, a means of verifying the identity of people using the electronic voting machine, ensuring that a person can vote in private and that the ballot is secret.  To assist in verifying the identity of the person using the remote electronic voting method, before a person can use the method he or she will need to register with the AEC as a Remote Electronic Voter, discussed at paragraphs 84 to 86 above.

 

115.           The regulations will also determine where and when a person may cast a remote electronic vote.  It is intended that remote electronic voting will be available at locations where the infrastructure is available for the electronic voting machines to operate and where it is safe to do so.  Depending on the availability of the infrastructure, it is intended that a person may cast a vote before voting day as well as on voting day.

 

116.           New section 73S also requires the remote electronic voting method to provide a person using the method with the same information and the same voting options as a person marking his or her traditional paper ballot paper for a referendum.

 



117.           The Referendum Act currently provides for a range of offences in relation to voting, such as those in Part IVA for pre-poll voting.  Consistent with this approach, new section 73S provides that regulations may provide for offences, and penalties for those offences not exceeding 50 penalty units, in relation to electronically assisted voting.  New section 73S also clarifies that the electronically assisted voting trial does not authorise any person to vote more than once at a referendum.

 

New section 73T - There must be a record of who has voted using the remote electronic voting method

 

118.           This section requires the regulations to provide for a record of each person who has voted using the electronically assisted voting method and may specify the information to be included in the record.  Similar provisions exist in the Referendum Act, such as for pre-poll voting, to provide transparency for scrutiny purposes.

 

New section 73U - Transmission of electronic votes to the Electoral Commission and scrutiny of votes

 

119.           Unlike the provisions for the electronically assisted voting trial for sight-impaired voters, the remote electronic voting method is unlikely to produce a hard copy record of the vote at the place where the vote was cast.  Once the vote is cast, an electronic vote record will be securely stored before being transmitted to the AEC.  Once at the AEC, a printed record of each electronic vote record transmitted to the AEC will be made for scrutiny purposes.  These records must not be capable of identifying the elector.

 

120.           New section 73U requires regulations to provide for the secure storage and transmission of an electronic vote record, as well as a printed record of each electronic vote record received by the AEC.

 

New section 73V - How this Act applies in relation to voting using the remote electronic voting method

 

121.           This section provides that the Referendum Act is to apply to a printed vote record as if it were a vote on a traditional ballot paper.  Similar to the provisions for the electronically assisted voting trial for sight-impaired voters, this approach has been adopted so that existing general polling provisions of the Referendum Act, such as those relating to the scrutiny and counting of votes, can be utilised for electronic vote records and do not need to be duplicated in the Bill.

 

122.           New section 73V also provides that the requirements in the Referendum Act regarding an elector’s right to receive a ballot paper is satisfied if a person casts a vote using the remote electronic voting.  The regulations may make additional provisions relating to how the Referendum Act is to apply to remote electronic voting.

 



Schedule 3 - Other amendments

 

Part 1 - Proof of identity for people enrolling from outside Australia

 

Commonwealth Electoral Act 1918

 

123.           Items 2 and 3 amend section 98AA of the Electoral Act as inserted by item 29 of Schedule 1 to the Electoral Integrity Act relating to the requirements that must be contained in regulations for documentary evidence of proof of identity by applicants for enrolment.  Item 29 commenced on 21 November 2006.  The Electoral Act, as amended by the Electoral Integrity Act, provides that the proof of identity requirements will not apply unless regulations are in operation.  The regulations are expected to be made as soon as possible.

 

124.           The proof of identity scheme has three tiers.  Under the first tier, enrolment applicants will be required to provide their driver’s licence number on their enrolment application.  If enrolment applicants do not have a driver’s licence then they will be required to show a prescribed document to an elector in a prescribed class (second tier).  If they do not have a driver’s licence or a prescribed identity document that they can show to an elector in a prescribed class, they will be required to have their enrolment application countersigned by two electors who have known them for at least one month and who can confirm their name (third tier). 

 

125.           The regulations to support the proof of identity requirements will specify that the driver’s licence must be issued by an Australian State or Territory and will provide for a broad range of documents and classes of electors to whom the prescribed documentation may be shown. 

 

126.           Sections 94A and 95 of the Electoral Act provide that, subject to a number of conditions, a person residing outside Australia may apply for enrolment.  As it is possible that not all overseas applicants may be able to provide an Australian driver’s licence number or meet either the second or third tier of the other requirements, an alternative proof of identity mechanism, as set out under item 3 below, is required to suit these applicants.

 

127.           These items will commence on Proclamation with a default commencement of six months after Royal Assent of this Bill.  This is consistent with the commencement provisions for the proof of identity requirements in the Electoral Integrity Act (on Proclamation or eight months after Royal Assent) and will allow sufficient time for the regulations for overseas enrolment applicants to be made.

 



Item 1 - Subsection 4(1)

 

128.           This item provides for the definition of ‘Australian passport’ as a consequence of item 3.

 

Item 2 - Subsection 98AA(1)

 

129.           This item makes a minor change to subsection 98AA(1) as a consequence of the amendments to subsection 98AA at item 3.

 

Item 3 - Paragraphs 98AA(1)(a) and (b)

 

130.           This item repeals and substitutes a new paragraph 98AA(1)(a) to provide for alternate documentary evidence that may be supplied by people enrolling from overseas under sections 94A and 95 of the Electoral Act.  In order to assist people enrolling from overseas to meet the first tier requirement, new paragraph 98AA(1)(a) provides these people with the option of supplying either their Australian passport number or their driver’s licence number as documentary evidence of their name. 

 

131.           New paragraph 98AA(1)(b) provides that where an overseas applicant does not have either an Australian passport or a driver’s licence, the applicant will be subject to the second tier requirements. 

 

Item 4 - Saving - regulations under paragraph 98AA(1)(a) and (b)

 

132.           This item saves any regulations that were in force for the proof of identity requirements prior to item 3 and allows those regulations to be amended or repealed.

 

Part 2 - Pre-poll voting offices

 

Commonwealth Electoral Act 1918

 

Item 5 - Subsection 4(1) (definition of pre-poll voting office )

 

133.           This item amends the definition of ‘pre-poll voting office’ as a consequence of item 6 which relates to the declaration of pre-poll voting offices .

 

Item 6 - After section 200B

 

134.           The Electoral Act currently provides that an application for a pre-poll vote may be made at a place, during the days and opening hours, gazetted by the AEC.  The requirement to gazette this information before a pre-poll office can operate prevents the AEC from establishing pre-poll voting facilities quickly in response to changing or unanticipated circumstances.

135.           New subsection 200BA(1) makes it explicit that the AEC may declare the place, days and hours of operation of pre-poll voting offices.  Paragraph 200BA(2)(a) provides that the declaration must be published in the Gazette prior to the first day of operation of the pre-poll voting office.

 

136.           Paragraph 200BA(2)(b) allows the AEC to establish a pre-poll voting office when, due to exceptional circumstances, it would not be possible to gazette the declaration prior to commencement of the operation of the pre-poll voting office.  This provision will operate as an exception to the general requirement to gazette pre-poll voting offices.  This will allow pre-poll voting offices to be established in circumstances where the AEC is required to quickly ensure that electors are able to cast votes.  The AEC must publish a copy of the declaration in the Gazette as soon as practicable after the declaration has been made (subparagraph 200BA(2)(b)(ii)).

 

137.           Where a pre-poll voting office has been declared under exceptional circumstances, subsection 200BA(3) requires the AEC to take all reasonable steps to make the details of such a declaration known to each of the candidates for the Division in which the pre-poll voting office is located and to the political parties running a candidate in that Division, and to place appropriate press advertising.  This must be done as soon as practicable after the declaration has been made.  These requirements provide for the minimum levels of notification the AEC can provide, and do not prevent the AEC from advising other appropriate people and organisations.

 

138.           Subsection 200BA(4) clarifies that a declaration made under subsection 200BA(1) is not a legislative instrument within the meaning of the Legislative Instruments Act 2003 .  This provision is merely declaratory and has been included in the Bill to assist the reader.

 

139.           This item gives effect to the Government’s response to recommendation 16 of the JSCEM’s report.

 

Item 7 - Subsection 200D(2)

 

140.           This item is a consequential amendment, due to item 6, specifying the place, day and time when applications for pre-poll votes are to be made.

 

Item 8 - Subsection 200DB(3)

 

141.           This item makes a consequential amendment, due to item 6, to a provision relating to scrutineers at pre-poll voting offices.

 

Item 9 - Subparagraph 348(4)(c)(ii)

 

142.           This item makes a consequential amendment, due to item 6, to provisions relating to the control of behaviour at polling places.

 

Referendum (Machinery Provisions) Act 1984

 

Item 10 - Subsection 3(1) (definition of pre-poll voting office )

 

143.           This item amends the definition of ‘pre-poll voting office’ as a consequence of item 11 below.  

 

Item 11 - After Section 73

 

144.           This item inserts new section 73AA in the Referendum Act in relation to pre-poll voting offices for voting in a referendum.  The provisions are the same as those at item 6 above.  However, as there are no candidates in a referendum, new subsection 73AA(3) requires the AEC, as soon as practicable and if appropriate to do so, to publish advice about the pre-poll voting office only in the Division in which the polling place is located.  The AEC will also be required to take all reasonable steps to inform each registered political party that it considers appropriate to inform about the pre-poll voting arrangements.  These requirements provide for the minimum notification the AEC can provide, and do not prevent the AEC from advising other appropriate people and organisations.

 

145.           Subsection 73AA(4) clarifies that a declaration made under subsection 73AA(1) is not a legislative instrument within the meaning of the Legislative Instruments Act 2003 .  This provision is merely declaratory and has been included in the Bill to assist the reader.

 

Item 12 - Subsection 73B(2)

 

146.           This item is a consequential amendment, due to item 11, specifying the place, day and time when applications for pre-poll votes are to be made.

 

Items 13 and 14 - Paragraph 73C(a)

 

147.           These items are consequential amendments, due to item 11, to provisions relating to pre-poll voting offices when a referendum is held on the same day as an election.

 

Item 15 - Subsection 73CB(3)

 

148.           This item makes a consequential amendment, due to item 11, to provisions relating to scrutineers at pre-poll voting offices.

 

Item 16 - Subparagraph 135(4)(c)(ii)

 

149.           This item makes a consequential amendment, due to item 11, to provisions relating to the control of behaviour at polling places.

 

Part 3 - Removal of provision relating to defamation of candidates and false statements

 

Commonwealth Electoral Act 1918

 

Item 17 - Section 350

 

150.           This item repeals section 350 which makes it an offence if a person makes or publishes any false and defamatory statement in relation to the personal character or conduct of a candidate.

 

151.           Following repeal of the section, cases of defamation will be dealt with in accordance with the civil law of defamation existing in the relevant State or Territory jurisdiction.  This will bring candidate defamation actions in line with existing laws and with the move to uniform national defamation laws.

 

152.           This item gives effect to the Government’s response to recommendation 46 of the JSCEM’s report.