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Electoral and Referendum Amendment (Close of Rolls and Other Measures) Bill (No. 2) 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 (No. 2) 2010

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(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 (No. 2) 2010 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). 

 

The Joint Standing Committee on Electoral Matters (JSCEM) conducted an inquiry into the conduct of the 2007 federal election and the resulting report is entitled Report on the conduct of the 2007 federal election and matters related thereto (JSCEM Report).  The Bill will implement the Governments response to two of the recommendation in the JSCEM Report.

 

The Bill contains provisions that will:

·            restore the close of Rolls period to seven days after the issue of the writ for an election; and

·            repeal the requirement for provisional voters to provide evidence of identity before their votes are admitted to scrutiny.

 

FINANCIAL IMPACT STATEMENT

The costs associated with implementation of the measures contained in this Bill are estimated at just over $0.2M.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause provides for the Act to be cited as the Electoral and Referendum Amendment (Close of Rolls and Other Measures) Act (No. 2) 2010 .

 

Clause 2 - Commencement

 

2.              This clause specifies that this Act commences upon Royal Assent.

 

Clause 3 - Schedule(s)

 

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              This clause specifies that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule, and any other item in a Schedule to this Act has effect according to its terms.

 

Schedule 1 - Amendments relating to close of Rolls

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Paragraph 94A(4)(a)

 

4.              Item 1 amends section 94A of the Electoral Act which deals with claims for enrolment lodged by eligible overseas electors who are located outside Australia.  This item removes the current restriction contained in paragraph 94A(4)(a) of the Electoral Act that prevents a person being added to the Rolls after 8pm on the date of the issuing of the writs and substitutes the day of the close of Rolls that is specified in the new section 155 (see item 12 below).

 

Item 2 - Subsection 95(4)

 

5.              Item 2 amends section 95 of the Electoral Act which deals with claims for enrolment from the spouse or child of an eligible overseas elector.  This item removes the current restriction contained in subsection 95(4) of the Electoral Act that prevents a person being added to the Rolls after 8pm on the date of the issuing of the writs and substitutes the day of the close of Rolls that is specified in the new section 155 (see item 12 below).

 

Item 3 - Subsection 96(4)

 

6.              Item 3 amends section 96 of the Electoral Act which deals with claims for enrolment from itinerant electors.  This item removes the current restriction contained in subsection 96(4) of the Electoral Act that prevents a person being added to the Rolls after 8pm on the date of the issuing of the writs and substitutes the day of the close of Rolls that is specified in the new section 155 (see item 12 below).

 

Item 4 - Subsection 102(1)

Item 5 - Subsection 102(2A)

Item 6 - Subsections 102(4), (4AA) and (4AB)

Item 7 - Paragraph 102(4A)(a)

Item 8 - Subparagraph 102(4A)(b)(ii)

Item 9 - Subsection 102(4B)

Item 10 - Paragraphs 102(4B)(a) and (b)

 

7.              Items 4 to 10 amend section 102 of the Electoral Act which deals with making changes to the electoral Roll after the receipt of claims for enrolment (including transfer of enrolment).  Existing subsections 102(4), (4AA), (4AB) and (4A) of the Electoral Act contain restrictions on taking action to add new voters to the electoral Roll after 8pm on the date of the issuing of the writs for an election.  The amendments remove this restriction and substitutes the day of the close of Rolls that is specified in the new section 155 (see item 12 below).

 

Item 11 - Subsection 118(5)

 

8.              Item 11 amends section 118 of the Electoral Act which deals with the determining of objections by a Divisional Returning Officer that results in a person being removed from the electoral Roll in accordance with the requirements contained in section 114.  This item removes the current restriction contained in subsection 118(5) of the Electoral Act that prevents a person being removed from the Rolls after 8pm on the date of the issuing of the writs and substitutes the day of the close of Rolls that is specified in the new section 155 (see item 12 above).

 

Item 12 - Section 155

 

9.              Item 12 contains the major change to section 155 of the Electoral Act by repealing the existing time period contained in this section for the close of the Rolls for the purposes of an election and substituting a new section 155 which specifies that the date fixed for the close of Rolls is the 7 th day after the date of the writ.  The amendments give effect to JSCEM Recommendation 1 and return the close of Rolls period to that which existed at the 2004 federal election.

 

Referendum (Machinery Provisions) Act 1984

 

Item 13 - Subsections 4(2) and (3)

 

10.          Item 13 amends section 4 of the Referendum Act which deals with making changes to the electoral Roll after the receipt of claims for enrolment and objection action.  Existing section 4 of the Referendum Act contains restrictions on taking action to add new voters, transfer the address details of existing voters or remove voters in specified circumstances generally from the issue of the writ for an election.  This item removes the current restrictions relating to the issue of the writ and substitutes the day of the close of the Rolls that is specified in new subsection 9(1) (see item 14 below).

 

Item 14 - Subsection 9(1)

 

11.          Item 14 contains the major change to section 9 of the Referendum Act by repealing the existing time period contained in this section for the close of the Rolls for the purposes of a referendum and substituting the new subsection 9(1) which specifies that the date fixed for the close of the Rolls is the 7 th day after the issue of the writ.  The amendments give effect to JSCEM Recommendation 1 and return the close of Rolls period to that which existed at the 2004 federal election.

 

Item 15 - Subsection 9(3)

 

12.          Item 15 repeals the now otiose definition of working day .

 

13.          The amendments contained in items 13 to 15 give effect to JSCEM Recommendation 45 which states that amendments to the Electoral Act should where appropriate be incorporated into the Referendum Act to ensure consistency between the provisions applying to elections and referenda.

 

Part 2 - Application of amendments

 

Item 16 - Application of amendments

 

14.          Item 16 makes it clear that the repeal of the amendments relating to the close of the Rolls only applies prospectively to all elections and referenda the writs for which are issued on or after the commencement of Schedule 1.

 

Schedule 2 - Amendments relating to evidence of identity for provisional votes

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsections 235(1B), (9) and (10)

Item 2 - After paragraph 3A of Schedule 3

Item 3 - Subparagraph 6(ca) of Schedule 3

 

15.          Provisional votes are a type of declaration vote that can be cast by an elector on polling day.  Section 235 of the Electoral Act sets out the requirements for casting a provisional vote.  Section 235 currently specifies that an elector who casts a provisional vote at a polling place on polling day must provide a polling official with evidence of identity at the time of voting or provide it to an AEC officer by the first Friday following polling day.  Section 266 of the Electoral Act sets out the requirements for conducting preliminary scrutiny of declaration votes, which includes declaration envelopes that contain provisional votes.  The process for preliminary scrutiny is set out in Schedule 3 to the Electoral Act which includes the current requirement in subparagraph 6(ca) that failure to provide evidence of identity for a provisional vote by the first Friday following polling day shall result in the envelope containing the provisional vote being excluded from the count.

 

16.          The amendments contained in items 1 to 3 of Schedule 2 give effect to JSCEM Recommendation 2 with amendments to section 235 and Schedule 3 to the Electoral Act.  The amendments repeal the requirement for the provision of evidence of identity either at the time that a provisional vote is cast or by the first Friday following polling day.

 

17.          Item 1 repeals the evidence of identity requirements contained in subsections 235(1B), (9) and (10) of the Electoral Act.

 

18.          Item 2 inserts a new paragraph 3B in Schedule 3 to the Electoral Act which enables the Divisional Returning Officer (DRO) to examine the declaration envelope that contains a provisional vote during preliminary scrutiny.  Where the DRO has some reason to doubt that the signature on the declaration envelope containing the provisional vote ballot-paper is the actual signature of a person who is entitled to vote at the election, then the DRO must check the signature against the most recent record that contains the elector’s signature.  In most circumstances this will be the signature on the claim for enrolment form. 

 

19.          Item 3 repeals the existing subparagraph 6(ca) of Schedule 3 to the Electoral Act and substitutes a new subparagraph that contains a similar requirement to new paragraph 3B of Schedule 3.  It is only where the DRO is of the view that the signature on a declaration envelope containing the provisional vote and the signature on other records is not the same that the declaration envelope is to be excluded at this point in the scrutiny process.

 

Referendum (Machinery Provisions) Act 1984

 

Item 4 - Subsections 37(1B), (9) and (10)

Item 5 - After paragraph 3A of Schedule 4

Item 6 - Subparagraph 6(ca) of Schedule 4

 

20.          Provisional votes can be cast in a referendum in a similar manner and for the same reasons as an election under the Electoral Act.  Subsections 37(1B), (9) and (10) of the Referendum Act require that an elector who casts a provisional vote on a voting day for a referendum must provide a polling official with evidence of identity at the time of voting or provide it to an AEC officer by the first Friday following voting day.

 

21.          The amendments contained in items 4 to 6 give effect to JSCEM Recommendation 45 which states that amendments to the Electoral Act should where appropriate be incorporated into the Referendum Act to ensure consistency between the provisions applying to elections and referenda.

 

22.          Item 4 repeals the evidence of identity requirements contained in subsections 37(1B), (9) and (10) of the Referendum Act.

 

23.          Item 5 inserts a new paragraph 3B in Schedule 4 to the Referendum Act which enables the DRO to examine the declaration envelope that contains a provisional vote during preliminary scrutiny.  Where the DRO has some reason to doubt that the signature on the declaration envelope containing the provisional vote ballot-paper is the actual signature of a person who is entitled to vote at the referendum, then the DRO must check the signature against the most recent record that contains the elector’s signature.  In most circumstances this will be the signature on the claim for enrolment form.

 

24.          Item 6 repeals the existing subparagraph 6(ca) of Schedule 4 to the Referendum Act and substitutes a new subparagraph that contains a similar requirement to new paragraph 3A of Schedule 4.  It is only where the DRO is of the view that the signature on a declaration envelope containing the provisional vote and the signature on other records is not the same that the declaration envelope is to be excluded at this point in the scrutiny.

 

Part 2 - Application of amendments

 

Item 7 - Application of amendments

 

25.          Item 7 makes it clear that the repeal of the evidence of identity provisions for dealing with provisional votes only applies prospectively to all elections and referenda the writs for which are issued on or after the commencement of Schedule 2.