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Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill 2010

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2008-2009-2010

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL AND REFERENDUM AMENDMENT (CLOSE OF ROLLS AND OTHER MEASURES) BILL 2010

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

(Circulated by the authority of the Special Minister of State, Senator the Hon Joseph Ludwig)

 



ELECTORAL AND REFERENDUM AMENDMENT (CLOSE OF ROLLS AND OTHER MEASURES) BILL 2010

OUTLINE

The Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill 2010 (the Bill) amends the Commonwealth Electoral Act 1918 (Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (Referendum Act).  The Government amendments to the Bill will implement the Government’s response to recommendation 49 of the Report by the Joint Standing Committee on Electoral Matters entitled Report on the conduct of the 2007 federal election and matters related thereto (JSCEM Report).  These amendments provide a legislative framework to enable sight-impaired voters to cast an independent and secret vote by electronically assisted means.

 

The amendments will modify existing Part XVB of the Electoral Act and Part IVB of the Referendum Act, which provided for one-off electronic voting trials at the 2007 federal election.  The amendments maintain the existing approach of these Parts so that electronically assisted voting is made possible by a broad legal framework supported by regulations.  This approach provides some flexibility as technology changes from election to election. 

 

The matters that regulations may be made to address include the:

·          process of casting an electronically assisted vote;

·          privacy, secrecy and integrity of the vote;

·          places, days and hours at which the electronically assisted vote will be available;

·          record which will be kept of each person who has been issued with a vote; and

·          record of the vote and how this vote record will be treated.

 

In contrast to the electronic voting trials that were limited to the 2007 federal election, the amendments allow for electronically assisted voting for eligible voters to be available at future referenda and general, Senate and by-elections.  Once a vote is cast it will be included in the scrutiny in the same way as pre-poll ordinary votes and the same formality rules will apply as other ballot papers.

 

FINANCIAL IMPACT STATEMENT

 

The cost associated with implementation of the proposed Government amendments is estimated at $370,000.  The Bill is expected to provide net savings of $5.7M over the forward estimates period, with the majority of savings delivered through efficiencies achieved in pre-poll voting at the next and subsequent federal elections.



 

NOTES ON AMENDMENTS

1.                   At the 2007 federal election a trial of electronic voting was conducted for two categories of voters.  The first category were voters who are blind or have low vision (sight-impaired) and second category were those voters who are defence personnel serving outside Australia.  This trial was limited to the 2007 federal election.  Without the amendments in this Bill there is no capacity in the Electoral Act or Referendum Act to provide sight-impaired voters with a secret and independent vote.

 

2.                   The JSCEM tabled an interim report into the electronic voting trial conducted at the 2007 federal election entitled Report on the 2007 federal election electronic voting trials (JSCEM electronic voting trial Report).  The JSCEM electronic voting trial Report contained five recommendations. 

 

3.                   These amendments implement the Government’s response to recommendation 1 of the JSCEM electronic voting trial Report and the Government’s response to recommendation 49 of the JSCEM Report.

 

Amendment 1 - Clause 2, page 2 (table item 4) (Commencement)

 

4.                   This amendment will provide that new Schedule 6 commences on Royal Assent and is consequential to amendment 2.

 

Amendment 2 - page 64 (after line 5) at the end of the Bill, add: Schedule 6 (Electronic voting)

 

5.                   This amendment will insert a new Schedule 6 into the Bill to provide a framework for the conduct of electronically assisted voting for sight-impaired people at the next federal election and for the further development of electronically assisted voting methods in the future.

 

Schedule 6 - Electronic voting

Part 1 - Amendments

Commonwealth Electoral Act 1918

Item 1 - Part XVB (heading)

Item 2 - Division 1 of Part XVB (heading)

 

6.                   Item 1 amends the heading of Part XVB to substitute a new heading - ‘Part XVB - Electronically assisted voting for sight-impaired people’.  Item 2 repeals the current heading for Division 1.  These amendments are necessary as the amended Part XVB will no longer be comprised of two Divisions.

 

Item 3 - Section 202AA

 

7.                   Item 3 repeals the term ‘Division’ and replaces it with the term ‘Part’ as a consequence of the amendments made by items 1 and 2.

 

Item 4 - Section 202AA

 

8.                   Item 4 amends section 202AA of the Electoral Act to insert a definition of the term ‘by-election’.

 

Item 5 - Section 202AA (definition of vote record )

 

9.                   Item 5 makes a minor amendment to the cross reference in the definition of ‘vote record’ necessitated by an amendment to section 202AD.

 

Item 6 - Subsection 202AB(1)

 

10.               Section 202AB is the substantive provision that provides for electronically assisted voting for sight-impaired voters to be implemented by regulations.  Section 202AB continues to set out a number of matters that the regulations may address.  These include the voting method, which persons are eligible to cast a vote, and where and when a vote can be cast.

 

11.               Item 6 amends subsection 202AB(1) of the Electoral Act to remove the restriction that electronically assisted voting only be available at one election.  This amendment will provide the capacity for secret and independent voting by electronically assisted voting method, implemented by regulations, to be available to sight-impaired voters at future Senate elections, general elections or by-elections.

 

Item 7 - Subparagraph 202AB(2)(a)(iv)

 

12.               Item 7 amends subparagraph 202AB(2)(a)(iv) of the Electoral Act to cease to require the voter to ‘apply’ to use the electronically assisted voting method.  The intention is that if a voter meets the requirements for obtaining an electronically assisted vote then they need only attend a place offering such a voting method.  Further, the voter’s eligibility to vote will be checked against the certified list or by some other means, prior to being issued a vote.

 

Item 8 - After paragraph 202AB(2)(a)

 

13.               Item 8 amends subsection 202AB(2) to insert new paragraph 202AB(2)(aa) to provide for the Electoral Commissioner to appoint officers in relation to the conduct of electronically assisted voting.  This provides for persons involved in the conduct of electronically assisted voting to be appointed as ‘officers’ in a similar manner to the appointment of other persons involved in handling of votes and voting as provided in the Electoral Act.  This amendment will particularly provide for those persons involved in the conduct of electronically assisted voting to be captured by the operation of Part XXI of the Electoral Act relating to electoral offences.

 

Item 9 - Paragraph 202AB(3)(a)

Item 10 - Paragraph 202AB(3)(b)

Item 11 - Subparagraph 202AB(3)(b)(i)

 

14.               Items 9, 10 and 11 are amendments to section 202AB necessitated by the fact that the use of electronically assisted voting method will no longer be limited to one electoral event.  At the commencement of the Bill, the amendments allow for electronically assisted voting method to be available for all Senate elections, general elections or by-elections.

 

15.               Subsection 202AB(3) continues to require the electronically assisted voting method to provide a voter using the method with the same information and the same voting options as a voter marking his or her paper ballot paper.

 

Item 12 - Subsection 202AB(5)

 

16.               Item 12 amends subsection 202AB(5) to remove references to the term ‘Division’ and substitutes the term ‘Part’.  This amendment is necessitated by the repeal of Division 2 of Part XVB by item 20 below.

 

Item 13 - Subsection 202AD(1)

 

17.               Item 13 amends subsection 202AD(1) to remove the number ‘(1)’ from the section necessitated by the repeal of subsection 202AD(2) by item 15.  A note under this item states that the heading to section 202AD of the Electoral Act is altered by omitting ‘printed’.

 

Item 14 - Subsection 202AD(1)

 

18.               Item 14 amends section 202AD to remove the requirement for a ‘vote record’ to be printed.  A vote record will still be required however this amendment will provide the flexibility for the vote record to be printed, hand written or in electronic form as provided for in the regulations. 

 

Item 15 - Subsection 202AD(2)

 

19.               A declaration vote is a vote that is placed in an envelope which bears the voter’s personal details on the outside.  Declaration votes are placed in an envelope as the voter’s entitlement to vote is not checked on the certified list prior to the voter being issued with a vote.  The personal details on the outside of the declaration vote are used to check the voter’s entitlement to vote on the certified list prior to the declaration vote being include in the count.

 

20.               Item 15 repeals subsection 202AD(2) of the Electoral Act which is no longer necessary as electronically assisted voting will no longer be by declaration vote as the voter’s eligibility to vote will be checked against the certified list or by some other means, prior to being issued a vote. 

 

Item 16 - Subsection 202AE(1)

Item 17 - Subsection 202AE(1)(note)

 

21.               Item 16 provides that, other than Part XVA and Schedule 2 of the Electoral Act, the Electoral Act applies to an electronically assisted vote as if the vote were a pre-poll ordinary vote.  This provides for the general polling provisions of the Electoral Act, such as those relating to the scrutiny and counting of votes, to be utilised for electronically assisted votes.

 

22.               Part XVA and Schedule 2 of the Electoral Act continue not to apply to electronically assisted votes as they relate to a voter’s eligibility to cast a pre-poll vote and the method of voting by pre-poll ordinary vote.  Section 202AE of the Electoral Act continues to provide for regulations to specify voter eligibility to cast an electronically assisted vote and the method of casting such a vote.

 

23.               Item 17 repeals the otiose note after subsection 202AE(1).

 

Item 18 - Subsection 202AE(2)

 

24.               Item 18 repeals the provisions relating to treating a vote record as if it were a declaration vote necessitated by the amendment at item 15.  Item 18 preserves the treatment of a vote record as if it were generally a ballot paper.  This technique enables other relevant polling provisions of the Electoral Act to apply to electronically assisted voting as discussed in relation to item 16 above.

 

Item 19 - Section 202AF

 

25.               Item 19 repeals current section 202AF and substitutes a new section 202AF which provides for the Electoral Commissioner to decide in writing that electronically assisted voting method is not to be used generally or at specified places for a particular specified election.  Any regulations that are in force when, and if, such a declaration is made continue to have effect.

 

26.               A decision by the Electoral Commissioner to make a determination under new subsection 202AF(1) is intended to be used in circumstances in which software or hardware issues may pose a risk to the integrity of the vote or the election.

 

27.               New subsection 202AF(3) clarifies that a determination under new subsection 202AF(1) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (Legislative Instruments Act).

 

Item 20 - Division 2 of Part XVB

 

28.               Item 20 repeals the now otiose Division 2 of Part XVB of the Electoral Act.  This amendment gives effect to the Government’s response to recommendation 1 of the JSCEM electronic voting trial Report not to provide remote electronic voting for defence personnel serving outside Australia.

 

Referendum (Machinery Provisions) Act 1984

Item 21 - Part IVB (heading)

Item 22 - Division 1 of Part IVB (heading)

 

29.               Item 21 amends the heading of Part IVB to substitute a new heading - ‘Part IVB - Electronically assisted voting for sight-impaired people’.  Item 22 repeals the current heading for Division 1.  These amendments are necessary as the amended Part IVB will no longer be comprised of two Divisions.

 

Item 23 - Section 73L

 

30.               Item 23 repeals the term ‘Division’ and replaces it with the term ‘Part’ as a consequence of the amendments made by items 21 and 22.

 

Item 24 - Section 73L (definition of vote record )

 

31.               Item 24 makes a minor amendment to the cross reference in the definition of ‘vote record’ necessitated by an amendment to section 73P of the Referendum Act.

 

Item 25 - Subsection 73M(1)

 

32.               Item 25 amends subsection 73M(1) to remove the reference to subsection 73M(2) necessitated by the repeal of subsection 73M(2) at item 27 below.

 

Item 26 - Subsection 73M(1)

Item 27 - subsection 73M(2)

 

33.               Items 26 and 27 amend section 73M to allow electronically assisted voting to be available for sight-impaired voters at all referendums held after the commencement of these amendments.

 

Item 28 - Subparagraph 73M(3)(a)(iv)

 

34.               Item 28 removes the requirement for the voter to ‘apply’ to use the electronically assisted voting method.  The intention is that if a voter meets the requirements for obtaining an electronically assisted vote as provided in the regulations then they need only attend a place offering such a voting method.  Further, the voter’s eligibility to vote will be checked against the certified list, or by some other means, prior to being issued a vote.

 

Item 29 - After paragraph 73M(3)(a)

 

35.               Item 29 inserts new paragraph 73M(3)(aa) into the Referendum Act to provide for the Electoral Commissioner to appoint officers in relation to the conduct of electronically assisted voting.  This provides for persons involved in the conduct of electronically assisted voting to be appointed as ‘officers’ in a similar manner to the appointment of other persons involved in handling of votes and voting as provided in the Referendum Act.  This amendment will particularly provide for those persons involved in the conduct of electronically assisted voting to be captured by the operation of Part X of the Referendum Act relating to offences.

 

Item 30 - Subsection 73M(4)

 

36.               Item 30 is an amendment to section 73M necessitated by the fact that electronically assisted voting will be available at all referenda after the commencement of these amendments.

 

Item 31 - Subsection 73M(6)

 

37.               Item 31 amends subsection 73M(6) to remove references to the term ‘Division’ and substitutes the term ‘Part’.  This amendment is required due to the repeal of Division 2 of Part IVB by item 39 below.

 

Item 32 - Subsection 73P(1)

 

38.               Item 32 amends subsection 73P(1) to remove the number ‘(1)’ from the section required by the repeal of subsection 73P(2) by item 34 below.  A note under this item states that the heading to section 73P of the Referendum Act is altered by omitting ‘printed’.

 

Item 33 - Subsection 73P(1)

 

39.               Item 33 amends section 73P to remove the requirement for a ‘vote record’ to be printed.  A vote record will still be required, however this amendment will provide the flexibility for the vote record to be printed, hand written or in electronic form as provided for in the regulations.

 

Item 34 - Subsection 73P(2)

 

40.               A declaration vote is a vote that is placed in an envelope which bears the voter’s personal details on the outside.  Declaration votes are placed in an envelope as the voter’s entitlement to vote is not checked on the certified list prior to the voter being issued with a vote.  The personal details on the outside of the declaration vote are used to check the voter’s entitlement to vote on the certified list prior to the declaration vote being include in the count.

 

41.               Item 34 repeals subsection 73P(2) of the Referendum Act which is no longer necessary as electronically assisted voting will no longer be by declaration vote as the voter’s eligibility to vote will be checked against the certified list, or by some other means, prior to being issued a vote.

 

Item 35 - Subsection 73Q(1)

Item 36 - Subsection 73Q(1)(note)

 

42.               Item 35 provides that, other than Part IVA and Schedule 3, the Referendum Act applies to an electronically assisted vote as if the vote were a pre-poll ordinary vote.  This provides for the general provisions of the Referendum Act, such as those relating to the scrutiny and counting of votes, to be utilised for electronically assisted votes.

 

43.               Part IVA and Schedule 3 of the Referendum Act do not to apply to electronically assisted votes as they relate to a voters eligibility to cast a pre-poll vote and the method of voting by pre-poll ordinary vote.  Section 73M provide for these matters to be specified in regulations.

 

44.               Item 36 repeals the otiose note after subsection 73Q(1).

 

Item 37 - Subsection 73Q(2)

 

45.               Item 37 repeals the provisions relating to treating a vote record as if it were a declaration vote necessitated by the amendment at item 34 above.  Item 37 preserves the treatment of a vote record as if it were generally a ballot-paper.  This technique enables other relevant polling provisions of the Referendum Act to apply to electronically assisted voting as discussed in relation to item 35 above.

 

Item 38 - After section 73Q

 

46.               Item 38 inserts new section 73QA into the Referendum Act as a parallel amendment to Electoral Act at item 19 above.  New section 73QA provides for the Electoral Commissioner to decide in writing that electronically assisted voting method is not to be used generally or at specified places for a particular specified referendum.  Any regulations that are in force when, and if, such a declaration is made continue to have effect.

 

47.               A decision by the Electoral Commissioner to make a determination under new subsection 73QA(1) is intended to be used in circumstances in which software or hardware issues may pose a risk to the integrity of the vote or the referendum.

 

48.               New subsection 73QA(3) clarifies that a determination under new subsection 73QA(1) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

49.               New subsection 73QA(4) provides that where an election and a referendum are held on the same day, any declaration under new subsection 202AF(1) of the Electoral Act shall be deemed to apply to the referendum as if the declaration was made under new subsection 73QA(1) of the Referendum Act.

 

Item 39 - Division 2 of Part IVB

 

50.               Item 39 repeals the now otiose Division 2 of Part IVB of the Referendum Act.  This amendment gives effect to the Government’s response to recommendation 1 of the JSCEM electronic voting trial Report not to provide remote electronic voting for defence personnel serving outside Australia.

 

Item 40 - Application of amendments

 

51.               Item 40 provides that the amendments for electronic voting apply to elections and referendums the writs for which are issued on or after Royal Assent.