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Electoral and Referendum Amendment Bill 1998

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THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

1997

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT BILL 1997

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

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

Senator the Honourable Nick Minchin)

 

 

11305 Cat. No. 97 1747 1 ISBN 0644 370602



 

ELECTORAL AND REFERENDUM AMENDMENT BILL 1997

 

 

OUTLINE

 

This Bill contains a number of proposed amendments to the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984 of an administrative nature.  They are necessary to resolve various practical problems which have arisen in electoral administration and to improve operational procedures in the conduct of elections and referendums.

 

Some of the proposed amendments were recommended by the Joint Standing Committee on Electoral Matters in its Report on the Conduct of the 1993 Federal Election tabled on 16 November 1994.

 

Other proposed amendments were recommended in the Joint Standing Committee on Electoral Matters Report entitled Electoral Redistributions which was tabled on 19 December 1995.

 

Further proposed amendments were recommended by the Joint Standing Committee on Electoral Matters in its Report on the Conduct of the 1996 Federal Election tabled on 16 June 1997.

 

The major provisions of the Bill are designed to:

 

×            enable the Australian Electoral Commission to delegate to staff its powers to supply and charge for goods and services and provide that such goods and services may be supplementary or an alternative to those already supplied under the Joint Rolls Arrangements between the Commonwealth and the States; and to delegate its powers under any law;

 

×            allow for the provision of the gender of electors for the purpose of approved medical research and public health screening surveys and for members, Senators and registered political parties;

 

×            improve the enrolment objection process by allowing relatives and friends who do not live in the same subdivision as electors of unsound mind to apply for their removal from the roll on medical advice and without the payment of an objection deposit;

 

×            allow for electors whose enrolment has been objected to, to be removed from the roll in the period between the issue of the writ for an election and the close of rolls;

 

×            ensure that the personal details of silent electors will not be disclosed to persons inspecting applications for postal votes;

 

×            allow the Australian Electoral Commission the option to use the more up-to-date method of security printing of ballot papers instead of using watermarked ballot papers which will result in considerable savings in ballot paper storage and production costs;

 

×            disallow canvassing in and around hospitals that are polling places on polling day and in special hospitals during the five days before and including polling day;

 

×            enable the Australian Electoral Commission to conduct the Senate scrutiny using a computer process;

 

×            extend the two-candidate preferred count, as conducted in polling places on polling night, to the fresh scrutiny and declaration votes scrutinies, as conducted later by the Divisional Returning Officers (DRO) and for the election of candidates based on a two-candidate preferred count;

 

×            enable the release of confidential elector data to State and Territory electoral administrations;

 

×            allow that the determination of State and Territory representation entitlements shall fall due in the thirteenth month of the first meeting of the House of Representatives rather than the tenth month;

 

×            bring the membership of the Redistribution Committee for the Australian Capital Territory into line with an equivalent body for a State;

 

×            provide that comments and objections in relation to a redistribution are made available for public scrutiny in a manner similar to suggestions;

 

×            relax the tight constraints on electoral variations between electorates, to allow “community of interest” factors to be properly considered;

 

×            allow greater opportunity for the public to object to proposed boundaries;

 

×            allow Australians living overseas for career or employment purposes, to apply within two years of departure, for enrolment (under similar criteria to that in place for itinerant electors) and to obtain eligible overseas status for a period of six years;

 

×            reduce the nomination period by one day (to not less than 10 days or no more than 27 days), with the declaration of nominations to be held 24 hours after the close of nominations but still retain the minimum 33 day and maximum 58 day election period;

 

×            increase the number of signatures required in support of a nomination by a candidate not endorsed by a registered political party from six to fifty;

 

×            increase the deposit for nomination from $250 to $350 in the House of Representatives, and from $500 to $700 in the Senate;

 

×            enable electors to vote immediately outside a polling place if the Presiding Officer is satisfied that, because of physical incapacity, the elector cannot enter the polling place.  Scrutineers will be invited to observe this process;

 

×            removes section 329A which makes it an offence to advocate the marking of a ballot paper other than in accordance with the instructions on the ballot paper.  The amendment of related provisions will effectively remove the possibility for voters to make a formal optional preferential vote;

 

×            allow that the declaration of the poll proceeds based on the result of the two candidate preferred count where, on the basis of first preference votes, the exclusion of all but two candidates for a House of Representatives’ Division is inevitable;

 

×            remove the requirement for registered political parties to lodge returns of electoral expenditure; and

 

×            allow registered political parties to lodge their audited accounts in place of the annual return, subject to a) the accounts containing a level of detail consistent with Part XX of the CEA and b) the format of the accounts being approved by the AEC.

 



FINANCIAL IMPACT STATEMENT

 

The Australian Electoral Commission estimates that approximately $800,000 would be saved over each three year parliamentary term if ballot papers were to be produced using security printing arrangements instead of watermarked ballot paper.  Savings are attributable to reduced storage, handling and freight costs as well as production costs.

 

The Australian Electoral Commission further estimates that approximately $300,000 would be saved at each Senate election if the Senate scrutiny were conducted by computer process in place of the current manual method.

 

The remaining provisions will give rise to neither costs nor savings.



Clause 1 - Short title

 

1.         This clause provides for the Act to be cited as the Electoral and Referendum Amendment Act 1997 .

 

Clause 2 - Commencement

 

2.         This clause provides that the Act shall come into operation 28 days after the day on which it receives Royal Assent.

 

Clause 3 - Schedules

 

3.         This clause provides for the Acts specified in the Schedules to be amended according to the applicable items set out in each of the Schedules.

 

SCHEDULE 1 - AMENDMENTS OF THE COMMONWEALTH ELECTORAL ACT 1918 (the CEA).

 

Item 1 - Interpretation

 

4.         This item amends subsection 4(1) of the CEA to provide a definition of “certified list of voters”.

 

Items 2 to 4 - Commission may provide other services

 

5.         These items:

·       amend subsection 7A(1) to provide that Electoral Commission officers and other electoral staff may provide goods or services to any person or body.  As the definition currently stands, only the Chairperson, the Electoral Commissioner, and the other Commission member, are authorised to provide goods or services.  The heading to the section is also altered;

·       insert new subsections 7A(1A) and 7A(1B) after subsection 7A(1).  These new subsections allow for the provision of goods or services, provided under subsection 7A(1), as an alternative or supplement to the arrangements made under section 84.  At present, section 84 is the sole basis for the Joint Roll Arrangements, and the existing section 7A, which provides a broad power to provide roll products, cannot be used as an alternative or supplement to section 84; and

·       amend subsection 7A(2) to complement the amendment to subsection 7A(1) above.

 

Item 5 - Fees for goods and services

 

6.         This item amends section 7B to provide that the Commission may charge for the supply of goods or services provided by Electoral Commission officers and other electoral staff.

 

Item 6 - Delegation by Commission

 

7.         This item amends subsection 16(1) to provide that the Commission may delegate its powers, not only under the CEA, but also under any other law.  The current provision does not allow the Commission to delegate its powers under other legislation, despite the fact that the Commission has powers under a range of other Commonwealth Acts.

 

Item 7 - Ascertainment of numbers of people of Commonwealth, States and Territories

 

8.         This item amends subsection 46(1) so that the determination of State and Territory representation entitlements shall fall due in the thirteenth month after the first meeting of the House of Representatives rather than the tenth month which is currently the case.  The effect of this amendment is to enable the population figures to be one calendar quarter closer to those applying at the time of the next election, than is currently the case.

 

Items 8 and 9 - Times at which redistributions are to commence

 

9.         These items amend paragraphs 59(5)(a) and 59(9A)(c) respectively, to replace the reference to ten months with thirteen months.  These amendments are consequential to the amendment at Item 7.

 

Items 10 and 11 - Redistribution Committee

 

10.       These items insert a new subsection 60(7A) and repeal section 61.  The effect of the amendments are to bring the membership of the Redistribution Committee for the Australian Capital Territory (and consequently an augmented Electoral Commission for the Australian Capital Territory) into line with an equivalent body for a State.

 

11.       The new subsection 60(7A) includes a definition of “senior Divisional Returning Officer for the Territory” which was provided for in section 61.

 

12.       The heading of the section is altered by omitting “for State”.

 

Item 12 - Projection time for equality of enrolments

 

13.       This item inserts a new section 63A which defines the projection time for the purpose of applying sections 66 and 73 in relation to a redistribution of a State or Territory.  The projection time is the mid-point of the 7 year redistribution period, that is, the end of the period of 3 years and 6 months after the starting time for the projection.  The new section also defines the starting time for the projection as the time at which the final determination of the redistribution is made.  However, the amendment also allows the Electoral Commission to determine an earlier projection time under subsection 63A(3), where it is of the opinion that a further redistribution may be required earlier than in 7 years time.

 



Item 13 - Suggestions and comments relating to a redistribution

 

14.       This item repeals and substitutes section 64 to provide that the notice in the Gazette and in newspapers circulating throughout the State or Territory, calling for suggestions and comments be placed by the Electoral Commissioner, rather than the Redistribution Committee.  This arrangement will allow interested parties to prepare suggestions while the appointment of the Redistribution Committee is being arranged. 

 

15.       The new section 64 will provide that the Gazette notice calling for suggestions and comments be published on a Wednesday making the closing date for suggestions a Friday.  The amendment also makes the cut-off time for receipt of suggestions and comments 6pm on the closing Friday.  The new section also provides that the newspaper notices need not be published on the same day as the Gazette.  This provision is for practical purposes, for example, one notice may be on the same day as the gazette notice, but the second may be published on the following Saturday, to capture a wider audience. 

 

16.       The new section 64 also includes a requirement for the redistribution committee to consider suggestions and comments previously submitted.

 

17.       This amendment will streamline the administrative arrangements associated with the receipt of comments and suggestions.

 

Items 14 and 15 - Quota

 

18.       These items amend subsection 65(2) to provide that the quota is struck as soon as practicable.  The quota will be based on the number of electors enrolled in the State or Territory at the end of the day on which the redistribution commenced.  This amendment replaces the reference to paragraph 64(1)(b) which determined that the quota be determined by the Electoral Commissioner at the close of the period allowed for suggestions and comments.  The current provision has the effect that those making suggestions and comments have to work in ignorance of the strict numerical constraint that will govern the redistribution.

 

Items 16 to 18 - Redistribution Committee to make proposed redistribution

 

19.       These items amend subsection 66(3) to extend the variation from the average divisional enrolment allowed three and a half years after a redistribution from 2 to 3.5 percent.  These items also include a cross reference to the new subsection 63A at Item 12.

 

Item 19 - Redistribution Committee to make proposed redistribution

 

20.       This item inserts a new subsection 66(3A) to make existing Divisional boundaries subordinate to the other qualitative criteria, namely community of interests, means of communication and travel, and the physical features and area of the proposed division.

 



Item 20 - Notice of proposed redistribution

 

21.       This item amends paragraph 68(1)(c) to provide that the Gazette notice inviting public attention to the exhibition of the map or maps referred to in paragraph 68(1)(a) and to the availability for perusal of copies of the suggestions and comments, descriptions and reasons, be published on a Friday.

 

Item 21 - Notice of proposed redistribution

 

22.       This item amends subsection 68(2) to provide that 6pm on the fourth Friday after publication of the notice calling for objections and comments be the closing time and date for objections to be lodged against a proposed redistribution.

 

23.       Further, the amendment will provide that written comments on objections are to be lodged with the Electoral Commission by 6pm on the sixth Friday after publication of the notice calling for objections and comments.

 

24.       This will streamline the administrative arrangements associated with the receipt of objections.

 

Items 22 and 23 - Objections against proposed redistribution

 

25.       These items amend section 69 to provide that comments and objections are made available for public scrutiny in a manner similar to suggestions.  This is to rectify the inconsistencies in the public scrutiny of comments and objections when compared to suggestions.

 

Item 24 -Augmented Electoral Commission

 

26.       This item amends paragraph 70(4)(a) to provide that the augmented Electoral Commission should also reconsider the comments on objections, lodged pursuant to the new subsection 69(3) as well as the objections lodged pursuant to the new subsection 69(1).

 

Item 25 - Consideration of Objections

 

27.       This item amends subsection 72(1) to include reference to comments on initial objections in subsection 72(1).

 

Item 26 - Consideration of objections

 

28.       This item amends subsection 72(2) to update a cross-reference to section 69 and replace it with a reference to new subsection 69(3) and is consequential to Item 23.

 



Items 27 to 29 - Consideration of objections

 

29.       These items amend section 72 to remove the requirement that persons or organisations must object to a Redistribution Committee proposal (or make suggestions or comments) to be able to lodge an objection to an Augmented Electoral Commission’s proposed redistribution.

 

Item 30 - Consideration of Objections

 

30.       This item amends subsection 72(14) to insert a definition of an initial comments.

 

Items 31 to 33 - Redistribution of State or Australian Capital Territory

 

31.       These items amend subsection 73(4) to provide a reference to the projection time specified under section 63A.  This amendment is consequential to the amendment at Item 12.

 

32.       Subsection 73(4) is also amended to extend the variation from the average Divisional enrolment allowed three and a half years after a redistribution from 2 to 3.5 percent.  This amendment is consequential to the amendment at Items 16 to 18.

 

Item 34 - Redistribution of State or Australian Capital Territory

 

33.       This item inserts a new subsection 73(4A) to make the existing Divisional boundaries subordinate to the other qualitative criteria, namely community of interests, means of communication and travel, and the physical features and area of the proposed division.  This amendment is consequential to the amendment at Item 19.

 

Item 35 - Copies of certain documents to be forwarded to the Minister

 

34.       This item amends paragraph 75(1)(e) to provide that the Electoral Commissioner must forward to the Minister copies of written comments on objections lodged under the new subsection 69(3).

 

Item 36 - Mini-redistribution

 

35.       This item amends paragraph 76(16A)(c) to alter the reference in the definition of “senior Divisional Returning Officer for the Territory” from section 61 to section 60.  This amendment is consequential to the amendment at Items 10 and 11.

 

Item 37 - New Rolls to be prepared upon Proclamation

 

36.       This item inserts in section 85 a reference to the new section 94A and is consequential to the amendment at Item 48.

 



Item 38 - Use of information from the Roll

 

37.       This item inserts new subsections 91(9A) and 91(9B).  The new subsection 91(9A) will allow for the provision of gender information for the purpose of approved medical research and public health screening surveys and for members, senators and registered political parties.  The new subsection 91(9B) will allow State and Territory electoral administrations, in those States and Territories which have entered into a Joint Roll Arrangement with the Commonwealth, to have access to date of birth and gender information for electors in other States and Territories.  The access to date of birth and gender information by State and Territory electoral administrations will allow those administrations to more effectively answer enquiries from electors, especially in the periods leading up to and during elections, whether federal, State or Territory.  It will also allow those administrations to more effectively monitor amendments to their respective electoral rolls.

 

Item 39 to 42 - Use of information from the Roll

 

38.       These items amend subsection 91A(1) as a consequence of amendments under Item 9, to include information released under the new subsections 91(9A) and (9B) within the provisions of section 91A relating to permitted uses of such information.

 

39.       These items also insert new subsections 91A(1AA) and 91A(2B) and amend subsection 91B(1) to provide that any information provided under new subsection 91(9B) may only be for purposes in connection with an election or referendum and monitoring the accuracy of information contained in a roll, and that if such information was improperly used or released, it is caught within the prohibition and penalty provisions of section 91B.

 

Item 43 to 47 - Enrolled voters leaving Australia

 

40.       These items amend section 94 to provide that eligible overseas elector status may be granted for a period of 6 years rather than of 3 years.

 

Item 48 - Enrolment from outside Australia

 

41.       This item inserts a new section 94A to allow Australians resident overseas for career and employment reasons to enrol and obtain eligible overseas elector status, up to 2 years after departure from Australia under similar criteria as that for itinerant electors.

 

Item 49 to 53 - Eligibility of spouse or child of overseas elector

 

42.       These items amend section 95 to provide that an application for eligible overseas elector status under this section may be given for a period of 6 years instead of 3 years.

 



Item 54 to 56 - Enrolment from outside Australia

 

43.       These items insert into paragraph 95AA(1)(c), subsections 99(3) and 101(1) a reference to new section 94A and are consequential to the amendment at Item 48.

 

Item 57 - Enrolment from outside Australia

 

44.       This item amends subsection 102(3) to delete an incorrect cross-reference.

 

Item 58 - Objection to enrolment

 

45.       This item amends the definition of “private objection” to include a cross-reference to new subsection 114(1A) inserted at Item 60.

 

Item 59 - Objection to enrolment

 

46.       This item amends subsection 114(1) to provide that a person enrolled for a subdivision may not object to the enrolment of another person on the grounds specified in paragraph 93(8)(a).  This amendment complements the new subsection 114(1A) in Item 60.

 

Item 60 - Objection to enrolment

 

47.       This item inserts subsection 114(1A) after subsection 114(1).  The new subsection provides that an elector may object to the enrolment of another person on the grounds specified in paragraph 93(8)(a) whether or not they are enrolled in the same Subdivision. This amendment will allow relatives and friends of electors of unsound mind, who may not live in the same Subdivision, to arrange for their removal from the roll on medical advice.

 

Item 61 - Form and manner of objection

 

48.       This item repeals and substitutes subsection 115(2) to provide that only objections under subsection 114(1) require the lodgement of an amount of $2 with the objection. Objections lodged under subsection 114(1A) do not require this payment.

 

Item 62 - Determination of objection

 

49.       This item amends subsection 118(5) to provide that the period during which a DRO cannot remove an elector’s name from the Roll commences at the close of Rolls rather than at the issue of the writ for an election.

 

Item 63 - Determination of objection

 

50.       This item amends subsection 118(8) as a consequence of the amendments to subsections 114(1) and 115(2) at Items 59 and 61.

 



Item 64 - Review of Administrative Appeals Tribunal

 

51.       This item inserts a reference to new subsection 94A(1) and is consequential to the amendment at Item 48.

 

Items 65 - Objection to continued use of name

 

52.       This item inserts a new section 134A to provide that a registered political party can object to the continuing use of a party name and/or abbreviation by another party which obtained its registration by claiming related party status to the existing registered political party, where the relationship no longer exists.

 

Items 66 to 69, 72 to 77 and 80

 

53.       These items provide for minor drafting amendments to sections 135, 136, 137, 138, 140 and 141 to remove the hyphen from “de-registered”, “de-registration”, “de-registering” and “de-register” wherever occurring.  The same alterations are made to the section headings.

 

Items 70 and 71 - De-registration of political party on other grounds

 

54.       These items insert a new paragraph 137(1)(ca), consequential to the Item 65, to provide that where a parent party has objected to the continued use of a name by a related party and the Commission has upheld the objection and the related party has failed to notify a change of name, which in the Electoral Commissioner’s opinion would be likely to be successful, within the required one month period, the related party may be deregistered.

 

Items 78 and 79 - Review of certain decisions

 

55.       These items insert amend subsection 141(1) by inserting the word “or” after each paragraph and by inserting new paragraphs 141(1)(ca) and (cb) to provide that a decision under new section 94A is a reviewable decision.

 

Items 81 and 82 - Writs for election of Senators, Writs for election of members of the House of Representatives

 

56.       These items repeal and substitute paragraphs 153(2)(b) and 154(4)(b) to provide that where there is only one major newspapers circulating in a State or Territory, the AEC is only required to advertised the particulars of the writ for an election in that newspaper.

 



Items 83, 84, 85 and 86 - Date of nomination

 

57.       These items amend subsection 156(1) and section 157 to reduce the nomination period by one day and increase by one day the period between the close of nominations and polling day.  The net effect is to retain the 33 day minimum, and 58 day maximum, period between the issue of the writ and polling day  These amendments are consequential to the amendment at Items 91 to 95 to provide that the declaration of nominations is 24 hours after the close of nominations.

 

Item 87 - Mode of nomination

 

58.       This item amends paragraph 166(1)(b)(i) to increase the number of signatures required in support of a nomination by a candidate not endorsed by a registered political party from six to fifty.

 

Items 88 and 89 - To whom nominations made

 

59.       These items amend paragraph 167(4)(b) and repeal paragraph 167(4)(c), respectively, to remove the requirement for the Australian Electoral Officer (AEO) to forward nomination deposit monies to each of the relevant DRO where a bulk nomination is received. The effect of these amendments is to allow the AEO to bank bulk nomination deposits directly into the Australian Electoral Commission’s Trust Fund, without then having to raise payment from that account to the relevant DRO’s who would then rebank the payment into the same account.

 

Items 90 and 91 - Requisites for nomination

 

60.       These items amend paragraphs 170(3)(a) and (b) to provide for an increase in the nomination deposit for candidates in a Senate election from $500 to $700 and for House of Representatives candidates from $250 to $350.

 

Item 92 to 96 - Hour of nomination and Declaration of nominations

 

61.       These items insert a new subsection 175(2) to provide that the declaration time for an election is 12 noon on the day after the day on which nominations for the election close and also amend subsections 176(1) and (2), as a consequence of the amendment to section 175, and to provide that the declaration of nominations may take place at the place of nomination or at another place determined by the AEO for the State or Territory.  A new subsection is also inserted which defines ‘declaration time’.

 

Item 97 and 98 - Dispatch of postal voting papers to registered general postal voters (definition of postal voting papers)

 

62.       These items repeal and substitute paragraph 186(2) and insert and new paragraph (c) to remove the requirement for a postal vote certificate, sent to general postal voters, to be printed on an envelope addressed the DRO.  This has the effect of allowing a system of double enveloping to be used for postal voting.

 

Item 99 - Issue of certificate and ballot papers

 

63.       This item amends subsection 188(1) to allow for the delivery of postal ballot papers and the certificate envelope to an applicant, other than by post.

 

Item 100 and 101 - Issue of certificate and ballot papers

 

64.       These items repeal and substitute paragraph 188(1)(a) and insert a new paragraph (c) to remove the requirement for a postal vote certificate to be printed on an envelope addressed to the DRO, and to allow that where a postal vote certificate is despatched to an elector by an ARO outside Australia, the certificate may be returned to the ARO or to the DRO.

 

Item 102 - Inspection of applications

 

65.       This item amends subsection 189(4) to provide that before postal vote applications are made available for public inspection, all information, other than the elector’s name, be removed from those applications received from silent electors.  While subsection 189(4) currently provides that the address of a silent enrolment elector be removed from the postal vote application before being made available for inspection, there is other information such as phone number, postal address and the witness’s name and address on the application, which could help to identify the elector’s address.

 

Item 103 - Certified lists of voters

 

66.       This item amends section 208 to provide that there shall be a certified list of voters.  Despite the range of references to the certified list of voters in the CEA, and its description in section 208, there is no provision which requires the existence of the list itself.  This has the potential to cause problems of evidence in litigation.

 

Items 104 to 105 - Ballot-papers/Official mark

 

67.       These items amend subsection 209(3) and section 209A respectively.. The amendment to 209(3) will provide that the security mark and colour requirement for the ballot papers may be “washed” onto white paper as part of the printing process, rather than having a requirement for printing onto coloured watermarked paper.  The amendment to 209A provides that ballot papers for elections may be printed using a security mark, approved by the Electoral Commission, in lieu of a watermark.  This will give the Electoral Commission the option of using a security printing method.  These items, together with those at items 3 and 4 of Schedule 2 have the potential to save approximately $800,000.

 

Item 106 and 107 - Group voting tickets/Individual voting tickets

 

68.       These items amend subsection 211(1) and 211A(4) to provide that candidates must lodge their voting tickets with the AEO within 48 hours after the close of nominations rather than within 24 hours.  This amendment is consequential to the amendment at Items 91 to 95.

 

Items 108 to 110 - Determination of order of names

 

69.       These items amend 213(1)(a) and insert a new subsection (6) to allow for the draw for the names on the ballot paper to be carried out at the time of the declaration of nominations and at the place of nomination or at a place determined by the AEO for the declaration.  These amendments complement the amendments at Items 92 to 96.

 

Item 111 - Mobile booths - other hospitals

 

70.       This item amends subsection 225(1) to provide that special hospitals used for mobile polling can be declared by gazettal at any time.  At present special hospitals can only be declared by gazettal for a specific election and therefore only after the issue of writs for an election.

 

Item 112 - Provisions related to sections 224 and 225

 

71.       This item amends subsection 226(2A) to provide that electoral visitors must advise voters that how-to-vote material is available and provide voters with that material on request.

 

Item 113 - Provisions related to sections 224 and 225

 

72.       This item amends paragraph 226(4)(a) to replace an incorrect reference to section 219 with the correct reference to section 348.

 

Item 114 - Provisions related to section 224 and 225

 

73.       This item omits subsection 226(5) and inserts two new subsections.  The first subsection provides that the general prohibition on canvassing near any polling booth in subsection 340(1) also applies to a hospital that is a polling place on polling day.  This means that canvassing for votes will be prohibited within a hospital or within six metres of an entrance to a hospital that is a polling place on polling day.

 

74.       The second subsection provides that the general prohibition on canvassing near any polling booth in subsection 340(1), also applies to a special hospital on the five days preceding polling day and on polling day.  This means that canvassing for votes will be prohibited within a special hospital and within 6 metres of the entrance to a special hospital during the period starting on the fifth day preceding polling day and ending on polling day, or the day to which polling is adjourned.  During this period mobile teams may visit special hospitals for the purpose of taking the votes of electors.

 

75.       Previously, canvassing in either a hospital that was a polling place or in a special hospital was prohibited from the day of the issue of the writ for an election until the end of polling day or the day to which polling was adjourned.

 



Items 115 and 116 - Forwarding of declaration votes

 

76.       These items amend paragraph 228(5)(c) and insert a new subsection 228(5A).  These provide that there will be a cut-off for the receipt of all postal votes of 13 days after polling day, whether or not they are received by the relevant DRO, another DRO, an Assistant Returning Officer (ARO) overseas, a pre-poll voting officer or a presiding officer.  At present only those postal votes returned direct to the relevant DRO must be received before the 13 day cut-off period.  Those received by the other officials, prior to polling day, and onforwarded to the relevant DRO attract no cut-off.  Inevitably there are delays in the receipt of documents from some overseas places, which may then cause delays to the commencement of a Senate scrutiny (the quota cannot be struck until all votes are received, even though the numbers involved are so small as to not affect the result of an election).

 

77.       However, in recognition of the possibility that larger numbers of votes may be delayed, the new subsection 228(5A) also provides for a discretionary power to reside with the Electoral Commissioner to extend the cut-off period beyond the 13 days.

 

Item 117 - Questions to be put to voter

 

78.       This item amends subsection 229(1) by removing “him” and substituting “the presiding officer”.

 

Item 118 - Questions to be put to voter

 

79.       This item amends subsection 229(4) to clarify that the “certified list” is in fact the “certified list of voters”.

 

Item 119 - Certain voters may vote outside polling place

 

80.       This item inserts a new section 234A to provide that an elector may vote outside (but in close proximity to) the polling place if the Presiding Officer is satisfied that the elector is unable to enter the polling place because of physical disability, illness, advanced pregnancy or other condition.  A polling official may issue the ballot-paper(s), and may assist the voter in marking their ballot-paper(s) if requested.  Scrutineers are to be invited to observe the process.

 

Item 120 - Marking of votes in House of Representatives election

 

81.       This item adds a new subsection 240(2) to provide that voters are required to mark their House of Representatives ballot-papers with consecutive numbers without the repetition of any number.

 



Item 121 - Compulsory voting

 

82.       This item amends subsection 245(3) to provide that the DRO may arrange for delivery of the non-voting penalty notice by means other than post.  This amendment will provide for greater flexibility in remote areas where mail services may be unreliable.

 

83.       Subsection 245(3) is also amended to provide that the penalty notice be sent to the latest known address of the elector, rather than the address shown on the certified list of voters.

 

Item 122 - Antarctic electors

 

84.       This item amends subsection 249(4) to remove the requirement for the DRO to annotate the certified list of voters to indicate that an elector is an Antarctic elector.  This requirement is unnecessary and out of step with other provisions for annotation of the Roll.  The requirement that the Roll for the subdivision be annotated is not affected.

 

Item 123 - Scrutiny, how conducted

 

85.       This item amends subsection 265(2) to include a reference to AEO as a person who can decide on whether a request by a scrutineer may unreasonably delay a scrutiny. This amendment is consequential on the insertion of new section 273A (computerised scrutiny) at Item 128.

 

Item 124 to 126 - Informal ballot-papers/Certain votes with non-consecutive numbers to be formal

 

86.       These items repeal subsection 270(2) and delete references to that subsection from paragraph 268(1)(c) and subsection 270(3) to require that all House of Representatives ballot papers must be consecutively numbered to be formal.  Votes marked 1, 2, 2, 2..... will no longer be counted as formal votes. reinforcing the intention of the CEA that voting be full preferential.

 

Items 127 to 128 - Computerised scrutiny of votes in Senate election

 

87.       These items insert new section 273A and 273B into the Act and amend subsection 273(1).  The new section 273A allows the AEC to conduct Senate scrutinies by a computer process.  The new section 273B allows for the scrutiny to be recommenced under either the manual or computer process, despite the scrutiny having first commenced under the other method.  The amendment to subsection 273(1) complements the new section 273A.

 

88.       The new section 273A provides that the computerised Senate scrutiny may be conducted by computer.  It also provides authority for the AEO for the State or Territory to conduct, by computer, scrutinies for formality of those ballot papers not scrutinised by the DRO.  Scrutiny of ballot papers for formality will be conducted by DROs on those ballot papers marked “above-the-line” only and those marked “below-the-line” which are obviously informal, for example, where more than half the squares on ballot papers marked below-the-line are blank.  It also provides that the scrutiny for the distribution of preferences and votes be conducted by a computer process.

 

89.       It also provides that the computer scrutiny for formality of ballot papers and the computer scrutiny for the distribution of preferences and votes must follow the same principles as for a manual scrutiny.  Any ties between candidates either at the point of distribution of a surplus or at the point of an exclusion must be resolved by the AEO.

 

90.       Further provision is made for the conduct of recounts by computer means where the original count was also conducted by computer.  However, where a tie occurred during the first count, and the same tie recurs during the recount, the AEO must resolve the tie at the recount such that the outcome of the tie is the same as occurred at the first count.

 

91.       Provision is also made for access by scrutineers to information on the record of preferences on ballot papers whose details have been stored within the computer system, including information on informal ballot papers and papers which are formal but not sequentially numbered, and a record of ballot papers notionally transferred at each count and a record of the progress of the count of the votes.

 

Items 129 and 130 - Scrutiny of votes in House of Representatives elections

 

92.       These items amend subsection 274(2A) and insert a new subsection 274(2C) to provide that the DRO, as directed, shall conduct a two candidate preferred count at the fresh scrutiny and at each scrutiny of the declaration votes.  The current provisions provide that a two candidate preferred count be conducted on polling night at each polling place.  These amendments extend this to the fresh scrutiny and declaration scrutinies conducted after polling day.

 

Item 131 - Scrutiny of votes in House of Representatives elections

 

93.       This item corrects a typographical error in subsection 274(7).

 

Item 132 to 135 - Scrutiny of votes in House of Representatives elections

 

94.       These items insert a new paragraph 274(7)(ca) and new subsections 274(7AA), (7AB) and (7AC) and amend paragraph 274(7)(d) and subparagraph 274(7)(d)(iii), which allow for the declaration of the poll in a House of Representatives election on the result of the two candidate preferred count where on the basis of first preference votes, the exclusion of all but two candidates is inevitable.  Where this test does not apply, the scrutiny must proceed with the full distribution of preferences under 274(7)(d).

 



Item 136 - Scrutiny of votes in House of Representatives elections

 

95.       This item amends subsection 274(9) to provide that the DRO shall conduct a “countback” where at a point of exclusion the two, or more, lowest ranking candidates are tied, in order to determine which to exclude.  Only where there is no preceding count at which one of these candidates had fewer votes than others will the DRO be required to determine the excluded candidate by lot.

 

Item 137 - Scrutiny of votes in House of Representatives elections

 

96.       This item amends subsection 274(11) to insert a cross reference to ballot papers set aside under new subparagraph 274(7AA)(c)(ii).

 

Item 138 - Scrutiny of votes in House of Representatives elections

 

97.       This item repeals subsection 274(13) to provide that the voting rights of DRO’s be restored.  Amendments to the CEA in 1990 removed the provisions which gave the DRO’s a casting vote, but did not restore their right to vote where they lived within the Division for which they are Returning Officer.

 

Item 139 - Provisional scrutiny

 

98.       This item inserts a new subsection 276(2) to provide that where a DRO has declared the poll under new paragraph 274(7)(ca), the DRO must carry out a full distribution of preferences at a later date as directed by the AEO.

 

Item 140 - Return of the writ for election of Senators

 

99.       This item amends paragraph 283(1)(a) to provide that the AEO may declare the result of the poll at the place of nomination or at another place.

 

Item 141 - Returns of electoral expenditure

 

100.     This item repeals and substitutes subsection 309(1) to provide that registered political parties are not required to lodge returns of electoral expenditure.

 

Item 142 to 144- Annual returns by registered political parties

 

101.     These items repeal and substitute section 314AB to provide that registered political parties may lodge annual returns of expenditure in the approved form or lodge audited financial statements in a form which meets the requirements and is approved by the Electoral Commission.

 

Item 145 - Amounts paid

 

102.     This item repeals section 314AD.

 



Item 146 - Printing and publication of electoral advertisements, notices etc

 

103.     This item amends subsection 328(1) to make explicit that posters are included in those forms of advertising which require authorisation.

 

Item 147 - Printing and publication of electoral advertisements, notices etc

 

104.     This item amends paragraph 328(3)(a) to provide that “car stickers” be omitted from those articles which are exempted from the requirement for authorisation. Recent elections have seen “car stickers” of varying sizes being used other than on cars.

 

Item 148 - Printing and publication of electoral advertisements, notices etc

 

105.     This item amends paragraph 328(3)(b) to insert into the CEA provisions currently contained in the Electoral and Referendum Regulations which prescribe classes of articles exempted from the authorisation provisions.  There has been a concerted effort to move regulations into the body of the CEA where possible.

 

Item 149 - Printing and publication of electoral advertisements, notices etc

 

106.     This item amends subsection 328(5) and is consequential to the amendment of subsection 328(1) at Item 146.

 

Items 150 and 151 - Misleading or deceptive advertisements

 

107.     These items repeal subsection 329(3) and delete a reference to subsection 329(3) in subsection 329(4) and are complementary to the amendment at Item 152.

 

Item 152 - Encouraging persons to mark ballot papers otherwise than in accordance with Act

 

108.     This item repeals section 329A to remove the prohibition on persons advocating the marking of a ballot paper other than in accordance with the instructions on that ballot paper.  Section 329A becomes obsolete following the amendment at Item 125, which removes the possibility of voters avoiding the full preferential requirements of the CEA.

 

Item 153 to 156 - Heading to electoral advertisements

 

109.     These items repeal and substitute subsection 331(1) to provide that as well as newspapers it applies to other periodical newsheets and magazines that accept paid advertisements and that it applies to advertisements containing electoral matter whether inserted “for reward” or free of charge by the owner or editor of the publication.  The word “newspaper” is replaced with “journal” in subsection 331(2) and “journal” is defined in new subsection (3).

 



Items 157 and 158 - Authors of reports etc. to be identified

 

110.     These items amend subsection 332(1) and paragraph 332(2)(b) to provide that letters to the editor of a newspaper are exempt from the full requirements of the authorisation provisions; only the author’s name and suburb/locality will need to be shown.  This amendment is made to address the security and privacy problems which currently exist as a result of the requirement for full address details to be shown with letters to the editor.

 

Item 159 to 161 - Other offences relating to ballot-papers etc.

 

111.     These items repeal paragraph 339(1)(j) and amend paragraphs 339(1)(a), (b), (c), (d), (e), (f), (g) and (h) as a consequence, and add new subsections (1A) and (1B) to provide for a revised offence for multiple voting.  The effect of the amendment is to make it a strict liability offence to vote more than once.  At present the offence of multiple voting is almost impossible to prove in the courts without full admission as to wilful intention by the alleged offender.

 

Item 162 - Forging and uttering electoral papers

 

112.     This item amends subsection 344(2) to provide that the definition of “electoral paper” include an “approved” form, as well as a “prescribed” form.

 

Item 163 - Voiding election for illegal practices etc.

 

113.     This item amends subsection 362(4) to replace the Broadcasting Act 1942 with the Broadcasting Services Act 1992 .

 

Item 164 - Collection of Statistical Information

 

114.     This item repeals section 393.  The current section 393 was inserted in 1983 as regulation 86 of the Electoral and Referendum Regulations to specifically empower the Commission to use electoral documents for information purposes (eg informal ballot paper surveys) after all petitions have been disposed of, rather than being automatically destroyed.  However, the ambiguous wording of the section has served only to confuse the Commission’s powers in this area.

 

115.     As subsection 393A(10) provides for the destruction of documents after all petitions have been disposed of (and not less than six months have elapsed since the declaration of the poll) and the documents are no longer required by the Commission for the performance of its functions, and section 375A provides for the use of documents by the Commission for the performance of its functions, section 393 serves no useful purpose.

 

Item 165 - Preservation of documents

 

116.     This item amends subsection 393A(1) to insert a definition of electoral documents, and is consequential upon the repeal of section 393 at Item 164.



 

SCHEDULE 2 - AMENDMENTS OF THE REFERENDUM (MACHINERY

PROVISIONS) ACT 1984 (the R(MP) Act)

 

Item 1 - Interpretation

 

117.     This item amends subsection 3(1) of the R(MP) Act to provide a definition of “certified list of voters”.

 

Item 2 - Certified lists of voters

 

118.     This item amends section 22 to provide that there shall be a certified list of voters.  Despite the range of references to the certified list of voters in the R(MP) Act, and its description in section 22, there is no provision which requires the existence of the list itself.  This has the potential to cause problems of evidence in litigation.

 

Items 3 and 4 - Forms of ballot-paper/Official mark

 

119.     These items amend paragraph 25(1)(b) and section 25A respectively.  The latter amendment provides that ballot papers for referendums may be printed using a security mark, approved by the Electoral Commission, in lieu of a watermark.  This will give the Electoral Commission the option of using a security printing method.  The former amendment will provide that the security mark and colour requirement for the ballot papers may be “washed” onto white paper as part of the printing process, rather than  having a requirement for printing onto coloured watermarked paper.  These amendments, together with those at Items 104 and 105 of Schedule 1 to this Bill, have the potential to save approximately $800,000 in each three year parliamentary term.

 

Item 5 - Question to be put to voter

 

120.     This item amends section 30 to substitute “him” with “the presiding officer”.

 

Item 6 - Questions to be put to voter

 

121.     This item amends subsection 30(4) to clarify that the “certified list” is in fact the “certified list of voters”.

 

Item 7 - Certain voters may vote outside polling place

 

122.     This item inserts a new section 36A to provide that an elector may vote outside (but in close proximity to) the polling place if the Presiding Officer is satisfied that the elector is unable to enter the polling place because of physical disability, illness, advanced pregnancy or other condition.  A polling official may issue the ballot-paper, and may assist the voter in marking their ballot-paper if requested.  Scrutineers are to be invited to observe the process.

 



Item 8 - Election and referendum on same day

 

123.     This item amends a typographical error in paragraph 40(b).

 

Item 9 - Compulsory voting

 

124.     This item amends subsection 45(3) to provide that the DRO may arrange for delivery of the non-voting penalty notice by means other than post.  This amendment will provide for greater flexibility in remote areas where mail services in remote areas may be unreliable.

 

125.     Subsection 45(3) is also amended to provide that the penalty notice be sent to the last known address of the elector, rather than the address shown on the certified list of voters.

 

Items 10 and 11 - Forwarding of declaration votes

 

126.     These items amend paragraph 46A(5)(c) and insert a new subsection 46A(5A).  These provide that there will be a cut-off for the receipt of all postal votes of 13 days after polling day, whether or not they are received by the relevant DRO, another DRO, an ARO overseas, a pre-poll voting officer or a presiding officer.  At present  only those postal votes returned direct to the relevant DRO must be received before the 13 day cut-off period.  Those received by the other officials, prior to polling day, and onforwarded to the relevant DRO attract no cut-off. Inevitably there are delays in the receipt of documents from some overseas places, which may then cause delays to the completion of the scrutiny (even though the numbers involved are so small as to not affect the result).

 

127.     However, in recognition of the possibility that larger numbers of votes may be delayed, the new subsection 46A(5A) also provides for a discretionary power to reside with the Electoral Commissioner to extend the cut-off period beyond the 13 days.

 

Item 12 - Mobile booths - other hospitals

 

128.     This item amends subsection 49(1) to provide that special hospitals used for mobile polling can be declared by gazettal at any time.  At present special hospitals can only be declared by gazettal for a specific referendum and therefore only after the issue of writs for a referendum.

 

Items 13 and 14 - Mobile booths - prisons

 

129.     These items amend subsections 49A(1) and (6), respectively to correct typographical errors.

 

Item 15 - Provisions related to sections 48 and 49

 

130.     This item repeals and substitutes subsection 50(2A) to provide that electoral visitors must advise voters that how-to-vote material is available and provide voters with that material on request.

 

Item 16 and 17 - Dispatch of postal voting papers to registered general postal voters

 

131.     These items amend subsection 58(2) to remove the requirement for a postal vote certificate to be printed on an envelope addressed the DRO.

 

Item 18 - Issue of certificate and ballot papers

 

132.     This item amends subsection 61(1) to provide for the delivery of postal ballot papers and the certificate envelope to an applicant, other than by post.

 

Item 19 - Informal ballot-papers

 

133.     This item amends subsection 93(3) to correct an incorrect cross-reference.

 

Item 20 - Return of the writ

 

134.     This item amends subsection 98(1) to omit “to him”.

 

Item 21 - Certain other matters not to invalidate referendum 

 

135.     This item amends section 108A to replace the Broadcasting Act 1942 with the Broadcasting Services Act 1992 .

 

Item 22 - Heading to Part IX

 

136.     This item amends the heading to Part IX to reflect the content of the Part. 

 

Item 23 - Returns by publishers

 

137.     This item amends subsection 112(3) to omit “him” and replace it with “the publisher”.

 

Items 24 to 26 - Heading to advertisements

 

138.     These items repeal and substitute subsection 124(1) to provide that as well as newspapers it applies to other periodical newsheets and magazines that accept paid advertisements and that it applies to advertisements containing matter intended or calculated to affect the result of a referendum whether inserted “for reward” or free of charge by the owner or editor of the publication.  The word “newspaper” is replaced with “journal” in subsection 124(2) and “journal” is defined in new subsection (3).

 



Items 27 and 28 - Authors of reports to be identified etc

 

139.     These items amend subsection 125(1) and paragraph 125(2)(b) to provide that letters to the editor or a newspaper are exempt from the full requirements of the authorisation provisions; only the author’s name and suburb/locality are to be shown.  This amendment is made to address the security and privacy problems which currently exist as a result of the requirement for full address details to be shown.

 

Item 29 to 31 - Other offences relating to ballot-papers etc

 

140.     These items repeal paragraph 130(1)(h) and amend paragraphs 130(1)(a), (b), (c), (d), (e), (f) and (g) as a consequence, and add new subsections (1A) and (1B) to provide for a revised offence for multiple voting.  The effect of the amendment is to make it a strict liability offence to vote more than once.

 

Item 32 - Delegation of Electoral Commission

 

141.     This item repeals section 137 and is consequential to the amendment under Item 6 of Schedule 1 to this Bill, which provides for the Commission to delegate its powers under any other law, that is including the Referendum (Machinery Provisions) Act 1984 .

 

Item 33 - Collection of Statistical Information

 

142.     This item repeals section 142.  Current section 142 was inserted to specifically empower  the Commission to use electoral documents for information purposes (eg.  informal ballot paper surveys) after all petitions have been disposed of, rather than being automatically destroyed. However, the ambiguous wording of the section has served only to confuse the Commission’s powers in this area.

 

143.     As subsection 142A(9) provides for the destruction of documents after all petitions have been disposed of (and not less than six months have elapsed since the declaration of the poll) and the documents are no longer required by the Commission for the performance of its functions, and section 109A provides for the use of documents by the Commission for the performance of its functions, section 142 serves no useful purpose.

 

Item 34 - Preservation of documents

 

144.     This item amends subsection 142A(1) to insert a definition of electoral documents, and is consequential upon the repeal of section 142 at Item 34.

 

Item 35 - Clause 8 of Schedule 4

 

145.     This item corrects a typographical error in Clause 8 of Schedule 4.