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Electoral and Referendum Amendment (Pre-poll Voting 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 (PRE-POLL VOTING AND OTHER MEASURES) BILL 2010

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Senator the Hon Joseph Ludwig)

 

 

 



ELECTORAL AND REFERENDUM AMENDMENT (PRE-POLL VOTING AND OTHER MEASURES) BILL 2010

 

OUTLINE

The Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Bill 2010 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

 

Following its inquiry into the conduct of the 2007 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled Report on the conduct of the 2007 federal election and matters related thereto (JSCEM Report).  Schedules 1,2 and 4 of the Bill implement the Government response to a number of recommendations made in the JSCEM Report.  Schedule 3 limits the number of candidates that can be endorsed by a political party in each Division.  This issue emerged at the 2009 Bradfield by-election and requires legislative amendment prior to the conduct of future federal elections.

 

The Bill contains provisions that will:

·            enable pre-poll votes cast in an elector’s ‘home’ Division to be cast and counted as ordinary votes, wherever practicable;

·            allow the Australian Electoral Commission (AEC) to manage its workload more efficiently by enabling enrolment transactions to be processed outside the Division for which the person is enrolling;

·            modernise enrolment processes to enable electors to update their address details electronically;

·            restrict the number of candidates that can be endorsed by a political party in each Division; and

·            provide a framework for sight-impaired voters to cast an independent and secret vote by electronically assisted means;

 

FINANCIAL IMPACT STATEMENT

The costs associated with implementation of the measures contained in this Bill are estimated at approximately $1.2M.  Net savings of $5.3M are expected to be achieved over the forward estimates period, with the majority of savings achieved through efficiencies in pre-poll voting at the next and subsequent federal elections.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause provides for the Act to be cited as the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 .

 

Clause 2 - Commencement

 

2.              Sections 1 to 3 commence upon Royal Assent.  Schedules 1, 3 and 4 commence on Royal Assent.  Schedule 2 is to commence on a date to be fixed by Proclamation or, if not proclaimed earlier, 6 months following Royal Assent.  Commencement upon Proclamation will provide some time to develop arrangements for the new enrolment processing arrangements.

 

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 pre-poll votes

 

4.              The amendments contained in Schedule 1 give effect to JSCEM recommendations 22 to 24 which generally recommend legislative amendment to provide for pre-poll votes cast in an elector’s ‘home’ Division to be cast and counted as ordinary votes, wherever practicable.

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 4(1) (definition of Compartment )

 

5.              Item 1 repeals the current definition of compartment which was restricted to a compartment used in a polling booth on polling day and inserts a new definition.  The new definition of compartment includes a compartment used in a polling booth on polling day and extends the definition to include a compartment used at a place at which pre-poll ordinary votes are available (a Divisional office and a pre-poll voting office).

 

Item 2 - Subsection 4(1) (paragraph (b) of the definition of declaration vote )

 

6.              Item 2 limits the definition of a declaration vote to include a pre-poll declaration vote but not a pre-poll ordinary vote.

 

Item 3 - Subsection 4(1)

Item 4 - Subsection 4(1)

 

7.              Items 3 and 4 insert new definitions for pre-poll declaration vote and pre-poll ordinary vote by referring to the new subsection 200AA(2).

 

Item 5 - Subsection 99B(1) (note)

 

8.              Item 5 amends the note at the end of subsection 99B(1) of the Electoral Act to clarify that a person who is provisionally enrolled under section 99B is not entitled to a pre-poll ordinary vote.

 

Item 6 - Before section 200A

 

9.              Part XVA of the Electoral Act provides for pre-poll voting to take place prior to polling day.  An elector may apply for a pre-poll vote on any of the grounds set out in Schedule 2 to the Electoral Act.  These grounds include such circumstances as the elector expecting to be absent from the state or territory in which they are enrolled during the hours of polling on polling day.

 

10.          The Electoral Act currently specifies that a pre-poll vote must be cast as a declaration vote.  This means that once an elector has filled out a ballot paper it is then inserted into an envelope upon which the elector has completed his or her personal details and signed a declaration that the elector is eligible for a pre-poll vote by meeting one of the grounds in Schedule 2 to the Electoral Act.  The current process for dealing with pre-poll votes prohibits the opening of any votes contained in an envelope until the prescriptive preliminary scrutiny process has been undertaken.  This means that pre-poll votes cannot be counted on polling night.  A large number of pre-poll votes at an election are ‘home Division pre-poll votes’.  Home Division pre-poll votes are pre-poll votes issued by a Division for that Division. 

 

11.          The amendments contained in Schedule 1 will specify two types of pre-poll vote: the currently existing pre-poll vote to be known as a pre-poll declaration vote and the new home Division pre-poll vote to be known as a pre-poll ordinary vote .

 

12.          In addition to defining the two different kinds of pre-poll voting, item 6 also inserts the headings for Division 1 and Division 2.  These new headings are required due to the inclusion of pre-poll ordinary voting within Part XVA.  The Divisions provide for an introduction, general matters relating to both forms of pre-poll voting, pre-poll ordinary voting and pre-poll declaration voting.

 

Item 7 - At the end of subsection 200A(2)

 

13.          Item 7 inserts a note at the end of subsection 200A(2) clarifying that a person who is provisionally enrolled is not entitled to vote by casting a pre-poll ordinary vote.

 

Item 8 - Subsection 200A(3)

 

14.          Item 8 makes a consequential amendment to the meaning of a reference to ‘elector’ for Part XVA and Schedule 3 to the Electoral Act to exclude a person who casts a pre-poll ordinary vote.

 

Item 9 - After subsection 200BA(1)

 

15.          A place, other than the office of a DRO, at which pre-poll votes can be taken must be declared in writing as such a place.  These places are known as pre-poll voting offices (PPVO). 

 

16.          A place at which pre-poll ordinary voting is available is specified in subsection 200DD (see item 14 below).  One of the places specified for the taking of pre-poll ordinary votes is a PPVO that is located within the geographical boundaries of a Division. 

 

17.          Item 9 inserts a new provision that enables the Electoral Commission to declare either in a declaration under subsection 200BA(1) or as a separate declaration under 200BA(1A) a PPVO as a place that can take pre-poll ordinary votes for one or more specified Divisions located outside the divisional boundaries in which the PPVO is located.

 

18.          Item 9 caters for PPVOs that take pre-poll ordinary votes for more than one Division.  These may include but are not limited to PPVOs located near the boundary of an electoral Division or for central city locations used to take votes for the entire State or Territory.

 

Item 10 - After subsection 200BA(3)

 

19.          Item 10 requires a declaration made under subsection 200BA(1A) to be published in the Gazette .

 

Item 11 - Subsection 200BA(4)

 

20.          Item 11 amends subsection 200BA(4) to clarify that a declaration under subsection 200BA(1A) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (Legislative Instruments Act).

 

Item 12 - At the end of subsection 200C(1)

Item 13 - At the end of subsection 200D(3)

 

21.          Item 12 inserts a note at the end of subsection 200C(1) and item 13 inserts a note at the end of subsection 200D(3).  The notes clarify that voting by pre-poll ordinary vote is not available at an office of an Assistant Returning Officer (ARO).  A person applying for a pre-poll vote at the office of an ARO outside Australia must vote by pre-poll declaration vote.

 

Item 14 - After section 200DB

 

22.          Item 14 inserts the substantive provisions relating to the manner in which pre-poll ordinary votes are cast and counted at an election.

 

23.          New section 200DC inserts definitions relating to Division 3 of Part XVA.  The places at which pre-poll ordinary voting is available are specified in new subsection 200DD(1).  For voters enrolled in a Division, those voters may be able to vote by pre-poll ordinary vote at the following places:

·          the office of the DRO for the voter’s Division;

·          a PPVO that is geographically located in the voter’s Division; or

·          a PPVO that is not geographically located within the Division but has been declared, in accordance with new subsection 200BA(1A), to be a PPVO for the voter’s Division.

 

24.          Despite the fact that a place meets one of the conditions in subsection (1), the Electoral Commissioner may determine in writing, in accordance with new subsection 200DD(2), that pre-poll ordinary voting is not available at that place generally or as specified.  New subsection 200DD(3) clarifies that a determination under new subsection 200DD(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

25.          New subsection 200DD(4) will provide that pre-poll ordinary voting for a Division is not available at a place unless the certified list of voters for that Division has been delivered to the place.

 

26.          New section 200DE specifies that every place at which pre-poll ordinary voting is available must have voting compartments for voters to complete their ballot papers in private.  There must also be a pencil in each compartment for the use of voters.

 

27.          In accordance with new section 200DF each place at which pre-poll ordinary voting is available must be provided with ballot boxes to securely house completed ballot papers.

 

28.          Entitlement to a pre-poll ordinary vote is specified in new subsection 200DG(1).  A voter is entitled to a pre-poll ordinary vote if:

·          the voter has applied for a pre-poll vote;

·          the place at which the voter has applied is a place at which pre-poll ordinary voting is available, in accordance with new section 200DD, for the voter’s Division;

·          the voter’s name is on the certified list for that Division;

·          the certified list for the voter’s Division has been delivered to that voting place; and 

·          the voter is not excluded from voting by pre-poll ordinary vote.

 

29.          A voter may be excluded from pre-poll ordinary voting if he or she meets any one of the exclusions specified in new subsection 200DG(2).  A voter is excluded from voting by pre-poll ordinary vote if:

·          the voter does not complete and sign a pre-poll vote certificate for ordinary voting;

·          the voter provides insufficient or unacceptable answers to the questions that must be put to the voter by the issuing officer in accordance with new section 200DI;

·          the voter’s address does not appear on the certified list of voters (the voter is a ‘silent elector’);

·          there is a mark on the certified list of voters that appears to indicate that the voter has already voted in the election; or

·          the voter is provisionally enrolled.

 

30.          A voter, who applies for a pre-poll vote and is entitled to a pre-poll ordinary vote, must vote by pre-poll ordinary vote.  When entitled to vote by pre-poll ordinary vote there are some obligations, specified in new section 200DH, the voter must undertake before the voter will be issued with ballot papers for an election.  First, the voter will receive a pre-poll vote certificate for ordinary voting, in the approved form.  The voter must complete and sign the pre-poll vote certificate and give it to an issuing officer.

 

31.          The issuing officer who received the voter’s pre-poll vote certificate for ordinary voting will ask the voter, in accordance with new subsection 200DI, the same questions that are asked of voters who vote at a polling place on polling day, namely:

a.   What is your full name?

b.   Where do you live?

c.   Have you voted before in this election or elections? (as the case requires).

 

32.          If the voter does not answer the questions fully or does not satisfy the issuing officer that they are the person on the certified list who they are claiming a vote for, the issuing officer may ask the voter further questions about information that is specified on the certified list.  Paragraph 200DG(2)(c) will provide that if the issuing officer is still not satisfied that the voter is the person on the certified list whom they are claiming a vote for, the voter is not entitled to a pre-poll ordinary vote.

 

33.          Paragraph 200DG(2)(b) will provide that if the voter answers the question in relation to previously voting in the election in the affirmative, the voter is not entitled to a pre-poll ordinary vote.

 

34.          If following this procedure, the voter is entitled to a pre-poll ordinary vote the issuing officer must give the voter an initialed ballot paper, in accordance with new section 200DJ.  The issuing officer must then place a mark against the voter’s name on a copy of the certified list for the voter’s Division to indicate that the voter has voted at the election.  If a scrutineer present has an objection to the voter being issued a pre-poll ordinary vote, the issuing officer must make a record of the objection however, the voter will still be entitled to receive a ballot paper.

 

35.          Upon receipt of a ballot paper the voter must comply with the process outlined in new section 200DK.  New section 200DK generally requires a voter to immediately go to a voting compartment, mark his or her vote upon the ballot paper in private, fold the ballot paper to conceal the vote and place it in a ballot box.  The voter must then leave the voting place without delay.

 

36.          The provision of assistance to certain voters is specified in new section 200DL.  If a voter is not able to complete the requirements of voting without assistance, a person, chosen by the voter, may assist the voter in accordance with the directions of the voter. The person chosen by the voter may assist the voter with the requirements of the pre-poll certificate for ordinary voting, completing his or her vote on the ballot paper, folding the ballot paper and placing the completed and folded ballot paper in the ballot box.  The directions given by the voter (to the person assisting) on how to complete the ballot paper may be by reference to a ‘how-to-vote card’.

 

37.          New section 200DM will prohibit a voter from:

·          removing the certificate or the ballot paper from the voting place; or

·          voting again in the same election.

 

38.          The treatment of ballot boxes used for housing pre-poll ordinary votes must be in accordance with the provisions of new sections 200DN to 200DR.  These new sections apply to the treatment of each ballot box that is used for pre-poll ordinary voting and does not apply to ballot boxes used for other types of votes (for example declaration votes or votes cast at a polling place on polling day).

 

39.          Before a ballot box is used for the first time, a voting officer must exhibit and securely fasten its cover in a similar manner to that done for polling on polling day.  At the end of each day of pre-poll ordinary voting the ballot boxes used on that day must be publicly sealed.  If a ballot box is to be used again on a subsequent day of pre-poll ordinary voting the ballot box must be publicly examined and made ready to receive ballot papers for that day of pre-poll ordinary voting.  This process must be followed for each subsequent day that a ballot box is used.

 

40.          New subsection 200DR(2) specifies that the DRO for the Division in which the place at which pre-poll ordinary votes are being taken is geographically located may give directions (in writing or orally) about the forwarding of sealed ballot boxes prior to the close of the poll.  New subsection 200DR(3) clarifies that if a direction under subsection 200DR(2) is made in writing by the DRO it is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

41.          New section 200DR will provide for sealed ballot boxes housing pre-poll ordinary votes to be delivered to a central place for the purposes of scrutiny.  For example if a PPVO is located in a place that is not equipped to be used for the purposes of conducting the scrutiny on polling night (e.g. a shopping centre) the DRO may direct the officers working at the PPVO to bring the sealed ballot boxes to the DROs office at the end of polling each night.  This will ensure the ballot boxes are secure.  It will also provide for the DRO to make arrangements to count the votes taken at that PPVO at the close of the poll on polling day, either at the DROs office or another central scrutiny centre.  This will enable more votes to be counted at the close of polling on polling day.

 

42.          If the DRO does not make any directions about the treatment of ballot boxes prior to the close of the poll then the sealed ‘full’ ballot boxes containing pre-poll ordinary votes must be securely stored at the place at which the votes were taken.  Following the close of the poll on polling day the sealed ballot boxes used for pre-poll ordinary voting must be forwarded for the purposes of scrutiny.  The scrutiny is to be conducted in accordance with the provisions of existing Part XVIII of the Electoral Act.  The scrutiny may be undertaken at the place at which the votes were issued or some other place.

 

43.          The heading to Division 4 is inserted immediately above new section 200DS.  This section specifies that a person who applies for a pre-poll vote under Division 2 but is not entitled to a pre-poll ordinary vote under Division 3 may vote by pre-poll declaration vote under Division 4.

 

Item 15 -Subsection 200E(1)

Item 16 - Paragraph 200E(1)(a)

Item 17 - Subsection 200E(9)

Item 18 - Section 200F

Item 19 - Subsection 200G(1)

Item 20 - Subsection 200G(1)

Item 21 - Subsection 200G(2)

Item 22 - Subsection 200G(2)

Item 23 - Paragraph 200J(1)(a)

Item 24 - Section 200K

Item 25 - Section 200K

Item 26 - Section 201

Item 27 - Subsections 202(1) and (2)

 

44.          The Electoral Act currently provides for pre-poll voting in a declaration envelope.  Items 15 to 27 amend the current sections 200E, 200F, 200G, 200J, 200K, 201 and 202  of the Electoral Act to reflect the fact that pre-poll voting in a declaration envelope is now known as ‘pre-poll declaration voting’ to distinguish it from ‘pre-poll ordinary voting’.

 

Item 28 - At the end of section 208

 

45.          Item 28 inserts new subsection 208(4) to make consequential amendments to section 208 of the Electoral Act as necessitated by new section 200DG (inserted by item 14) to extend the obligation upon the Electoral Commissioner to arrange for delivery of a copy of the certified list of voters to be delivered to places at which pre-poll ordinary voting is to take place.

 

Item 29 - Subsection 221(3)

 

46.          Item 29 makes consequential amendments to subsection 221(3) of the Electoral Act as necessitated by new section 200DI (inserted by item 14) requiring a person who is voting by pre-poll ordinary vote to be asked the same questions as a person voting at a polling place on polling day.

 

Item 30 - Section 230

 

47.          Item 30 amends section 230 of the Electoral Act to extend the operation of the section to pre-poll ordinary voting. 

 

Item 31 - Subsection 238(1)

Item 32 - Subsection 238(1)

Item 33 - Subsection 238(4)

 

48.          Items 31 to 33 amend section 238 of the Electoral Act to extend the operation of the section to pre-poll ordinary voting.

 

Item 34 - Paragraph 268(1)(a)

Item 35 - Paragraph 273(2)(a)

Item 36 - Paragraph 273(2)(ab)

Item 37 - Paragraph 274(2)(a)

Item 38 - Paragraph 274(2)(ab)

 

49.          Items 34 to 38 make consequential amendments to Part XVIII of the Electoral Act as necessitated by the fact that the scrutiny of pre-poll ordinary votes will be conducted in accordance with the scrutiny procedures in existing Part XVIII.

 

Item 39 - Paragraph 393A(1)(f)

 

50.          Item 39 makes consequential amendments to section 393A of the Electoral Act to extend the operation of the section to pre-poll ordinary voting.

 

Referendum (Machinery Provisions) Act 1984

 

Item 40 - Subsection 3(1)

 

51.          Item 40 inserts a new definition of compartment into section 3 of the Referendum Act similar to the definition specified in the Electoral Act at item 1 of this Schedule.

 

Item 41 - Subsection 3(1) (paragraph (b) of the definition of declaration vote )

 

52.          Item 41 restricts the definition of a declaration vote to include a pre-poll declaration vote and clarifies that a pre-poll ordinary vote is not a declaration vote within the meaning of the Referendum Act.

 

Item 42 - Subsection 3(1)

Item 43 - Subsection 3(1)

 

53.          Items 42 and 43 insert definitions for pre-poll declaration vote and pre-poll ordinary vote into section 3 of the Referendum Act.

 

Item 44 - At the end of section 22

 

54.          Item 44 makes consequential amendments to section 22 of the Referendum Act as necessitated by new section 73CD (inserted by item 60) to extend the obligation upon the Electoral Commissioner to arrange for a copy of the certified list of voters to be delivered to places at which pre-poll ordinary voting is to take place.

 

Item 45 - Subsection 32(1)

 

55.          Item 45 amends section 32 of the Referendum Act to extend the operation of the section to pre-poll ordinary voting for a referendum. 

 

Item 46 - Subsection 38(1)(note 1)

 

56.          Part IVA of the Referendum Act provides for pre-poll voting to take place prior to polling day.  An elector may apply for a pre-poll vote on any of the grounds set out in Schedule 3 to the Referendum Act.  These grounds include such circumstances as the elector expecting to be absent from the state or territory in which they are enrolled during the hours of polling on polling day.

 

57.          The Referendum Act currently specifies that a pre-poll vote must be cast as a declaration vote.  This means that once an elector has filled out a ballot paper it is then inserted into an envelope upon which the elector has completed their personal details and signed a declaration that the elector is eligible for a pre-poll vote.  The current process for dealing with pre-poll votes prohibits the opening of any votes contained in an envelope until the prescriptive preliminary scrutiny process has been undertaken.  This means that pre-poll votes cannot be counted at the end of polling on polling day.

 

58.          The amendments contained in Schedule 1 will specify two types of pre-poll vote, the currently existing pre-poll vote to be known as a pre-poll declaration vote and the new home Division pre-poll vote to be known as a pre-poll ordinary vote .

 

59.          As the amendments provide for two types of pre-poll votes, item 46 is a consequential amendment to clarify that it is a pre-poll declaration vote that should be included in the definition of declaration votes.

 

Item 47 - Subsection 41(1)

Item 48 - Subsection 41(1)

Item 49 - Subsection 41(4)

 

60.          Items 47 to 49 amend section 41 of the Referendum Act to extend the operation of the section to pre-poll ordinary voting.

 

Item 50 - Before section 72

 

61.          Item 50 inserts new section 71A which specifies the manner in which the two types of pre-poll votes must be cast as well as inserting the first two of the four new Division headings.

 

Item 51 - At the end of subsection 72(2)

 

62.          Item 51 inserts a ‘note’ at the end of subsection 72(2) clarifying that a person who is provisionally enrolled is not entitled to vote by pre-poll ordinary vote.

 

Item 52 - Subsection 72(3)

 

63.          Item 52 states that in this Part a reference to an ‘elector’ includes a reference to a person who applies for a pre-poll ordinary vote  and excludes a person who is provisionally enrolled from voting by pre-poll ordinary vote.

 

Item 53 - After subsection 73AA(1)

Item 54 - After subsection 73AA(3)

Item 55 - Subsection 73AA(4)

 

64.          A place, other than the office of a DRO, at which pre-poll votes can be taken must be declared as such a place in writing.  These places are known as pre-poll voting offices (PPVO). 

 

65.          A place at which pre-poll ordinary voting is available is specified in new section 73CD (see item 60 below).  One of the places specified for the taking of pre-poll ordinary votes is a PPVO that is located within the geographical boundaries of a Division. 

 

66.          Item 53 inserts a new provision that enables the Electoral Commission to declare either in a declaration under subsection 73AA(1) or as a separate declaration under 73AA(1A) a PPVO as a place that can take pre-poll ordinary votes for one or more specified other Divisions located outside the divisional boundaries in which the PPVO is located.

 

67.          Item 53 caters for PPVOs that take pre-poll ordinary votes for more than one Division.  These may include but are not limited to PPVOs located near the boundary of an electoral Division or for central city locations used to take votes for the entire State or Territory.

 

68.          Item 54 requires a declaration made under subsection 73AA(1A) to be published in the Gazette .

 

69.          Item 55 amends subsection 73AA(4) to clarify that a declaration under subsection 73AA(1A) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

Item 56 - At the end of subsection 73A(1)

Item 57 - At the end of subsection 73B(3)

 

70.          Items 56 inserts a note at the end of subsection 73A(1) and item 57 inserts a note at the end of subsection 73B(3).  The notes make it clear that voting by pre-poll ordinary vote is not available at an office of an ARO outside Australia.  A person applying for a pre-poll vote at the office of an ARO outside Australia must vote by pre-poll declaration vote.

 

Item 58 - After paragraph 73C(a)

 

71.          Section 73C of the Referendum Act applies when a referendum and an election are held on the same day.

 

72.          Item 58 makes an amendment to section 73C of the Referendum Act necessitated by item 9.  This item inserts a new provision into the Electoral Act that enables the Electoral Commission to declare either in a declaration under subsection 200BA(1), or as a separate declaration under 200BA(1A), a PPVO as a place that can take pre-poll ordinary votes for one or more specified Divisions located outside the geographical location of the PPVO.  Where an election and a referendum are held on the same day a declaration in accordance with subsection 200BA(1A) will apply to the referendum.

 

73.          For voters enrolled in a Division those voters may be able to vote by pre-poll ordinary vote at the following places:

·          the office of the DRO for the voter’s Division;

·          a PPVO that is geographically located in the voter’s Division; or

·          a PPVO that is not geographically located within the Division but has been declared to be a PPVO for the voter’s Division.

 

74.          Despite the fact that a place meets one of the conditions above, the Electoral Commissioner may determine in writing, in accordance with new subsection 200DD(2), that pre-poll ordinary voting is not available at that place generally or as specified.  Item 58 makes a further amendment to section 73C of the Referendum Act to have a determination under subsection 200DD(2) of the Electoral Act apply to a referendum held on the same day as an election. 

 

Item 59 - Paragraph 73C(c)

 

75.          Item 59 makes a consequential amendment to paragraph 73C(c) of the Referendum Act necessitated by the fact that pre-poll ordinary votes and pre-poll declaration votes have different certificates for the voter to complete and sign.  However, where an election and a referendum are held on the same day an elector only has to fill in one pre-poll vote certificate for voting in both the election and the referendum.

 

Item 60 - After section 73CB

 

76.          Item 60 inserts the substantive provisions relating to the manner in which pre-poll ordinary votes are cast and counted at a referendum.  This item inserts new sections 73CC to 73CS into the Referendum Act which mirror similar provisions in item 14 of this Schedule for the Electoral Act.  In accordance with JSCEM Recommendation 45 and to ensure consistency between the provisions applying to elections and referenda the application of the amendments to the Electoral Act for pre-poll ordinary voting (as described in item 14 above) apply in a consistent manner to the amendments to the Referendum Act contained in item 60.

 

77.          Item 60 inserts new subsection 73CD(3) which clarifies that a declaration under subsection 73CD(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

78.          Item 60 inserts new subsection 73CR(3) into the Referendum Act which clarifies that a direction under subsection 73CR(2) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

79.          Item 60 also inserts the headings to Division 3 and Division 4.

 

Item 61 -Subsection 73D(1)

Item 62 - Subsection 73D(1)

Item 63 - Subsection 73D(9)

Item 64 - Section 73E

Item 65 - Subsection 73F(1)

Item 66 - Subsection 73F(1)

Item 67 - Subsection 73F(2)

Item 68 - Subsection 73F(2)

Item 69 - Paragraph 73H(1)(a)

Item 70 - Section 73J

Item 71 - Section 73J

Item 72 - Section 73K

 

80.          The Referendum Act currently provides for pre-poll voting in a declaration envelope.  Items 61 to 72 amend the current sections 73D, 73E, 73F, 73H, 73J and 73K in the Referendum Act to reflect the fact that pre-poll voting in a declaration envelope is now known as ‘pre-poll declaration voting’ to distinguish it from ‘pre-poll ordinary voting’.

 

Item 73 - At the end of subparagraph 90(1)(e)(i)

Item 74 - Subparagraph 90(1)(e)(iii)

Item 75 - Paragraph 93(1)(a)

 

81.          Items 73 to 75 make consequential amendments to Part VI of the Referendum Act as necessitated by the fact that the scrutiny of pre-poll ordinary votes will be conducted in accordance with the existing scrutiny procedures in existing Part VI.

 

Item 76 - Paragraph 142A(1)(f)

 

82.          Item 76 amends section 142A of the Referendum Act to extend the operation of the section to both pre-poll declaration voting and pre-poll ordinary voting. 

 

Part 2 - Application of amendments

 

Item 77 - Application of amendments

 

83.          Item 77 makes it clear that the amendments relating to pre-poll voting only apply prospectively to elections and referenda the writs for which are issued on or after the commencement of Schedule 1.  However, the amendments do not apply to any by-elections held between Royal Assent (for this Bill) and the first general election to which the amendments apply.

 

Schedule 2 - Amendments relating to processing of enrolments

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 4(1) (at the end of the definition of officer )

 

84.          The term ‘officer’ defined in subsection 4(1) of the Electoral Act lists a range of office holders and job titles as people who come within the definition of ‘officer’.  This technique provides a shorthand means of referring to a range of people in the Electoral Act, for example in Part XXI, with the use of only one word.

 

85.          Item 1 clarifies that the term ‘officer’ includes those staff to whom the Electoral Commissioner has delegated enrolment-related powers or functions under proposed subsection 28(2) at item 3 below.

 

Item 2 - Section 28

 

86.          Item 2 makes a consequential amendment to section 28 as a result of item 3 inserting new provisions into that section.

 

Item 3 - At the end of section 28

 

87.          Item 3 inserts three new subsections into section 28.  New subsection 28(2) provides that the Electoral Commissioner may delegate all or any of his or her enrolment powers and functions to any officer or any other member of staff of the Electoral Commission.  The need for this new delegation power arises due to the approach adopted by Schedule 2 to deliver administrative efficiencies in enrolment processing, with particular emphasis on the effective use of electronic technology.

 

88.          The approach adopted to implement these efficiencies is to specify the Electoral Commissioner as the person responsible for undertaking enrolment-related tasks and functions.  The Electoral Commissioner will then delegate these powers and functions to any suitable person or class of people in the AEC.  The proposed approach is based upon JSCEM recommendation 42, however it does not limit the processing of enrolment transactions outside the Division in which a person is enrolling to a Division within the same State or Territory.  The broad power to delegate enrolment-related powers and functions is required so that all staff and geographical locations can be utilised to derive maximum efficiency in enrolment processing.

 

89.          Consistent with the current power for the Electoral Commissioner to direct DROs, new subsection 28(3) requires a delegate to comply with any directions of the Electoral Commissioner.  New subsection 28(4) limits the Electoral Commissioner’s new power to delegate powers and functions to those under specified sections and Parts of the Electoral Act.  These sections and Parts are those providing for enrolment-related functions such as entering a person’s details on the electoral Roll or annotating an enrolment record to identify a special category elector, such as an eligible overseas elector.

 

Item 4 - Subsection 86(3)

Item 5 - Subsection 86(4)

 

90.          The operation of subsections 86(3) and (4) was to make either an Australian Electoral Officer (AEO) or the Electoral Commissioner responsible for informing electors that they had been transferred between electoral Rolls following a redistribution.  Item 4 implements the policy outlined under the discussion at item 3 to specify the Electoral Commissioner as the person responsible for this function.  Item 5 repeals subsection 86(4) as there is no longer any need to distinguish the circumstances in which an AEO or the Electoral Commissioner inform electors of the change.

 

Item 6 - Section 87

 

91.          Section 87 specifies a DRO or an Assistant DRO as the person responsible for amending new Rolls within a specified period.  Item 6 specifies the Electoral Commissioner as the person responsible for this function.

 

Item 7 - Subsection 93A(2)

Item 8 - Subsection 93A(2)

Item 9 - Subsection 93A(3)

Item 10 - Subsection 93A(4)

 

92.          Section 93A provides that a DRO or an AEO can refuse to include a person’s name on the Roll in specified circumstances.  If a DRO or an AEO does refuse to include a person’s name on the Roll, then the person must be notified in writing of that decision.  Items 7 to 10 substitute references to ‘Divisional Returning Officer’ and ‘Australian Electoral Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes.  The right of a person to be notified of the decision is unchanged.

 

Item 11 - Subsection 94(1)

Item 12 - Paragraph 94(2)(a)

Item 13 - Subsection 94(4)

Item 14 - Subsection 94(4)

Item 15 - Subsection 94(5)

Item 16 - Subsection 94(8)

Item 17 - Subsection 94(8)

Item 18 - Subsection 94(9)

Item 19 - Subsection 94(9)

Item 20 - Subsection 94(11)

Item 21 - Subsection 94(14)

Item 22 - Subsection 94(14)

Item 23 - Paragraph 94(15)(a)

Item 24 - Paragraph 94(15)(a)

 

93.          Section 94 provides that, in specified circumstances, an elector who ceases to reside in Australia may apply to be treated as an eligible overseas elector.  Items 11 to 24 substitute references to ‘Divisional Returning Officer’ and ‘DRO’ with ‘Electoral Commissioner’, and make other minor consequential changes, so that the Electoral Commissioner becomes responsible for these functions rather than the DRO for the Division in which the person is enrolled and seeks to be treated as an eligible overseas elector.  Other than these changes, the effect of the current provisions remains the same.

 

Item 25 - Subsection 94A(1)

Item 26 - Paragraph 94A(2A)(b)

Item 27 - Subsection 94A(3)

Item 28 - Paragraph 94A(4)(a)

Item 29 - Subsection 94A(5)

Item 30 - Paragraph 94A(5)(b)

Item 31 - Subsection 94A(6)

 

94.          Section 94A provides that in certain circumstances, a person may enrol from outside of Australia.  Items 25 to 31 substitute references to ‘Australian Electoral Officer’ and ‘Divisional Returning Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes.  These amendments will make the Electoral Commissioner responsible for these functions rather than the AEO for a State which contains the Subdivision in which the person seeks to enrol.  Other than these changes, the effect of the current provisions remains the same.

 

Item 32 - Subsection 95(1)

Item 33 - Subsection 95(1)

Item 34 - Paragraph 95(2A)(b)

Item 35 - Subsection 95(4)

Item 36 - Subsection 95(4)

Item 37 - Subsection 95(4)

Item 38 - Subsection 95(5)

Item 39 - Paragraph 95(5)(c)

Item 40 - Subsection 95(6)

Item 41 - Subsection 95(8)

Item 42 - Subsection 95(8)

Item 43 - Subsection 95(9)

Item 44 - Subsection 95(9)

Item 45 - Subsection 95(11)

Item 46 - Subsection 95(14)

Item 47 - Subsection 95(14)

Item 48 - Paragraph 95(15)(a)

Item 49 - Paragraph 95(15)(a)

 

95.          Section 95 provides that in certain circumstances, a person who is the spouse or child of an eligible overseas elector may enrol from outside Australia.  These items generally substitute references to ‘Divisional Returning Officer’ and ‘DRO’ with ‘Electoral Commissioner’, and make other minor consequential changes, so that the Electoral Commissioner becomes responsible for these functions rather than the DRO for the Division in which the person seeks to be enrolled and treated as an eligible overseas elector.

 

96.          As the Electoral Commissioner has been given the responsibility for all applications under section 95, consequential amendments are needed to subsection 95(4).  Items 35, 36 and 37 amend subsection 95(4) to prevent the Electoral Commissioner enrolling someone in a Subdivision after 8.00pm on the day that a writ is issued for an election in that Division.  The person may be enrolled after the close of polling in that election.

 

97.          Other than these changes, the effect of the current provisions remains the same.

 

Item 50 - Section 95AB

Item 51 - Subsection 95AC(1)

 

98.          Sections 95AB and 95AC are concerned with the enrolment of Norfolk Island electors.  These items generally substitute references to ‘Divisional Returning Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes, so that the Electoral Commissioner becomes responsible for these functions rather than a DRO.  Other than these changes, the effect of the current provisions remains the same.

 

Item 52 - Subsection 95AC(2)

 

99.          The amended subsection 95AC(1) will require the Electoral Commissioner to annotate the Roll to indicate that a person is enrolled as a Norfolk Island elector.  To ensure the integrity of the Roll the AEC intermittently reviews this category of enrolment.  Subsection 95AC(2) currently requires reviews of the records kept in relation to Norfolk Island electors to be undertaken at the direction of the Electoral Commission. 

 

100.      The amendments proposed by item 52 will provide that the Electoral Commissioner may conduct a review in relation to electors to whom an annotation under 95AC(1) applies.  The responsibility for conducting reviews is consistent with the approach for review of other elector enrolment which is initiated internally by the AEC using ‘objection action’.  The proposed amendment is also consistent with the Electoral Commissioner’s new enrolment-related responsibilities provided for elsewhere in the Bill.  Finally, it is appropriate that the Electoral Commissioner as chief executive officer of the agency has the responsibility for conducting reviews.

 

Item 53 - Subsection 96(1)

Item 54 - Subsection 96(2A)

Item 55 - Subsection 96(2B)

Item 56 - Subsection 96(4)

Item 57 - Subsection 96(5)

Item 58 - Subsection 96(5)

Item 59 - Subsection 96(6)

Item 60 - Subsection 96(7)

Item 61 - Subsection 96(10)

Item 62 - Paragraphs 96(10)(a) and (b)

Item 63 - Paragraph 96(11)(a)

 

101.      Section 96 provides that, in specified circumstances, a person may apply to be enrolled under this section as an itinerant elector.  If a person is enrolled under section 96, the Roll is annotated to indicate that the person is an itinerant elector.  These items generally substitute references to ‘Australian Electoral Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes.  These amendments will make the Electoral Commissioner responsible for these functions rather than the AEO for a State which contains the Subdivision in which the person seeks to enrol.

 

102.      Item 59 amends subsection 96(6) to provide that if the Electoral Commissioner refuses an application, the person may seek a review of the decision under Part X.  While Part X is amended by items 143 to 160, the amendment proposed by item 59 does not substantively affect the current review rights.

 

103.      Other than these changes, the effect of the current provisions remains the same.

 

Item 64 - Section 97

 

104.      Item 64 makes consequential amendments to the application provisions of Part VII.  These consequential amendments are required due to the ‘Electoral Commissioner’ replacing references to ‘Australian Electoral Officer’, ‘Divisional Returning Officer’ and ‘Assistant Returning Officer’ throughout the Part.

 

Item 65 - Subsection 98A(2)

Item 66 - Subsection 98A(2)

Item 67 - Subsection 98A(3)

Item 68 - Subsection 98A(4)

 

105.      Similar to section 93A in Part VII, section 98A provides that a DRO or an AEO can refuse to include a person’s name on the Roll in specified circumstances.  If a DRO or an AEO does refuse to include a person’s name on the Roll, then the person must be notified in writing of that decision.  Items 65 to 68 substitute references to ‘Divisional Returning Officer’ and ‘Australian Electoral Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes.  The right of a person to be notified of the decision is unchanged.

 

Item 69 - Subparagraph 99A(4)(d)(ii)

 

106.      Section 99A provides that, in specified circumstances, a person may make a provisional claim for enrolment.  Subparagraph 99A(4)(d)(ii) provides that this claim may be made to any Australian Electoral Officer or DRO.  Item 69 makes a straightforward substitution of ‘Electoral Commissioner’ for ‘Australian Electoral Officer or DRO’.

 

Item 70 - Subsection 99B(1)

Item 71 - Paragraph 99B(5)(b)

Item 72 - Subsection 99B(7)

 

107.      Subsection 99B(1) provides that, in specified circumstances, a person may apply to a Divisional Returning Officer for provisional enrolment.  Item 70 makes a straightforward substitution of ‘the Electoral Commissioner’ for ‘a Divisional Returning Officer’.

 

108.      Items 71 and 72 make similar substitutions as item 70 with the effect that the Electoral Commissioner becomes responsible for keeping records under paragraph 99B(5)(b) or informing the person under subsection 99B(7), rather than the DRO for the Division in which the person is provisionally enrolled.

 

Item 73 - Subsection 100(1)

 

109.      If they meet other eligibility criteria, section 100 allows 17 years olds to submit a claim for enrolment to any Divisional Returning Officer or Australian Electoral Officer.  Item 73 substitutes the reference to ‘any Divisional Returning Officer or Australian Electoral Officer’ with ‘Electoral Commissioner’.

 

Item 74 - Subsections 101(1) and (1A)

Item 75 - Subsections 101(2) and (3)

Item 76 - Subsection 101(4)

Item 77 - Subsection 101(5)

Item 78 - Subsection 101(7)

 

110.      Section 101 provides for the compulsory enrolment and transfer of every person who is entitled to be enrolled.  With the exception of item 75, these items substitute references to ‘Divisional Returning Officer’ and ‘Australian Electoral Officer’ with ‘Electoral Commissioner’, and make other minor consequential changes.

 

111.      Subsections 101(2) and (3) require an AEO or DRO to ensure that the claim is delivered to the DRO for the Division in which the person is entitled to be enrolled.  Item 75 repeals subsections 101(2) and (3) as these become redundant once the Electoral Commissioner is made responsible for all functions under section 101.

 

Item 79 - Subsection 102(1)

Item 80 - Paragraph 102(1)(b)

Item 81 - Paragraph 102(1)(ba)

Item 82 - Paragraph 102(1)(c)

Item 83 - Paragraph 102(1)(c)

Item 84 - Subsection 102(1A)

Item 85 - Subsections 102(2) to (2E)

Item 86 - Subsection 102(3)

 

112.      Section 102 provides for the action that must be taken when a claim for enrolment or transfer of enrolment is received.  Item 79 substitutes the references to ‘Divisional Returning Officer’ with ‘Electoral Commissioner’ and makes other consequential amendments to provide that the Electoral Commissioner is obliged to deal with claims received pursuant to section 101.

 

113.      Item 80 recasts paragraph 102(1)(b) to substitute a reference to ‘officer’ with ‘Electoral Commissioner’ and modernise the wording.  In addition item 80 repeals the words ‘in that Division’ from subparagraph 102(1)(b)(iii) and repeals subparagraph 102(1)(b)(iv) as these become redundant once the Electoral Commissioner is made responsible for actioning claims under section 102.

 

114.      Items 81 and 82 substitute references to ‘officer’ with ‘Electoral Commissioner’.

 

115.      Item 83 repeals the words ‘in a Subdivision of that Division’ from paragraph 102(1)(c) and substitutes ‘for a Subdivision’ as the words ‘of that Division’ become redundant once the Electoral Commissioner is made responsible for actioning claims under section 102.

 

116.      Item 84 substitutes the reference to ‘a Divisional Returning Officer’ with ‘the Electoral Commissioner’ and makes other consequential minor amendments.

 

117.      Item 85 repeals subsections 102(2) to (2E), which provided that, in specified circumstances, an AEO or a DRO could deal with claims for enrolment for a Division outside the AEO’s State or for a Division outside the DROs Division but in the same State.  These provisions were designed to allow flexibility in managing workload during the busy ‘close of Rolls’ period.  The flexibility introduced by the amendments in Schedule 2 means that these subsections are no longer required.

 

118.      Item 86 substitutes the reference to ‘a Divisional Returning Officer’ with ‘the Electoral Commissioner’.

 

Item 87 - Subsection 104(2)

Item 88 - Paragraph 104(4)(b)

Item 89 - Subsection 104(4)

Item 90 - Subsection 104(5)

Item 91 - Subsection 104(5)

Item 92 - Subsection 104(7)

Item 93 - Subsection 104(8)

Item 94 - Subsection 104(9)

 

119.      Section 104 provides that, in specified circumstances, a person may request that his or her address is not shown on the Roll or deleted from the Roll.  These people are known as ‘silent electors’.  With the exception of item 92, these items substitute references to ‘Divisional Returning Officer’ and ‘DRO’ with ‘Electoral Commissioner’, and make other minor consequential changes so that the Electoral Commissioner becomes responsible for these functions rather than a DRO.

 

120.      The amended subsection 104(4) will require the Electoral Commissioner, if satisfied with the request under subsection 104(1), to either not include the applicant’s address on the Roll or to delete the applicant’s address from the Roll.  To ensure the integrity of the Roll, the AEC intermittently reviews the Roll in relation to silent electors.  Subsection 104(7) currently requires such reviews to be undertaken at the direction of the Electoral Commission. 

 

121.      The amendments proposed by item 92 will provide that it is the Electoral Commissioner, and not the Electoral Commission, who may conduct a review of the Roll in relation to silent electors.  The responsibility for conducting such a review is consistent with the approach for reviews of other elector enrolment which is initiated internally by the AEC using ‘objection action’.  The proposed amendment is also consistent with the Electoral Commissioner’s new enrolment-related responsibilities provided for elsewhere in the Bill.  Finally, it is appropriate that the Electoral Commissioner as chief executive officer of the agency has the responsibility for conducting reviews.

 

Item 95 - Subsection 105(1)

Item 96 - Paragraph 105(1)(f)

Item 97 - Subsection 105(2)

Item 98 - Subsection 105(4)

 

122.      In addition to other provisions in the Electoral Act, section 105 provides for additional powers to alter the Roll.  Items 95, 96 and 98 substitute references to the ‘Divisional Returning Officer’ and ‘officer’ with the ‘Electoral Commissioner’, and make other minor changes so that these powers are given to the Electoral Commissioner.  Item 97 repeals subsection 105(2) and substitutes a recast provision to recognise that the Electoral Commissioner is made responsible for actioning all enrolment-related activities.

 

Item 99 - Section 106

 

123.      Section 106 provides that where a person is enrolled by making a false statement, that person’s name may be removed from the Roll in specified circumstances.  Item 99 simply substitutes the reference to ‘Divisional Returning Officer for that Division’ with ‘Electoral Commissioner’.

 

Item 100 - Section 107

 

124.      Section 107 provides for how the Roll is altered and applies to hard copy Rolls (as subsection 111(5) provides that section 107 does not apply to alterations of a Roll using a computer system).  Item 100 places the obligations in section 107 on any person making alterations to a Roll, rather than just the DRO or a person making the alteration on behalf of the DRO.

 

Item 101 - Paragraph 108(a)

Item 102 - Paragraph 108(b)

 

125.      Section 108 requires the Registrar-General to provide each month specified details of each person aged 17 years or upwards who has died in the preceding month.  The section also requires the Registrar-General to forward any information required under an agreement between the Registrar-General or a Minister of State and the AEC.  These items amend section 108 to require the information to be forwarded to the Electoral Commissioner or an officer nominated by the Electoral Commissioner.

 

Item 103 - Subsections 109(1) and (2)

 

126.      Similar to section 108, section 109 requires a Controller-General of Prisons to provide specified information at specified times.  This item amends section 109 to require the information to be forwarded to the Electoral Commissioner or an officer nominated by the Electoral Commissioner.

 

Item 104 - Subsection 110(1)

Item 105 - Subsection 110(1)

Item 106 - Subsection 110(2)

 

127.      Section 110 requires information received under sections 108 and 109 to be actioned in accordance with the Electoral Act.  These items make amendments to section 110 as a consequence of those made by items 101, 102 and 103.

 

Item 107 - Subsection 111(1)

Item 108 - Subsection 111(1)

Item 109 - Subsection 111(2)

Item 110 - Subsection 111(2)

Item 111 - Subsection 111(4)

Item 112 - Subsection 111(4)

Item 113 - Subsection 111(4)

 

128.      Section 111 is concerned with computer records relating to a Roll.  These items substitute references in section 111 to ‘Divisional Returning Officer’ and ‘officer’ with the ‘Electoral Commissioner’, and make other minor changes so that these powers and functions are given to the Electoral Commissioner.

 

Item 114 - Section 111A

 

129.      Section 111A provides that a claim under Part VIII may be sent by fax.  As amendments proposed by item 181 will allow an enrolment-related claim or notice to be sent to an electronic address in specified circumstances, item 114 repeals section 111A as it is redundant.

 

Item 115 - Section 112

 

130.      Item 115 makes consequential amendments to the application provisions of Part VIII.  These consequential amendments are required due to ‘Electoral Commissioner’ replacing references to ‘Australian Electoral Officer’, ‘Divisional Returning Officer’ and ‘Assistant Returning Officer’ throughout Part VIII.

 

Item 116 - Subsection 113(1)

Item 117 - Subsection 113(1) (definition of appropriate DRO )

Item 118 - Subsection 113(1) (definition of official objection )

Item 119 - Subsection 113(2)

 

131.      Part IX sets out the procedures for how an elector is ‘objected’ off the Roll.  The amendments to Part IX do not substantially change the manner in which objection action is currently undertaken.

 

132.      Section 113 is the interpretation section for Part IX.  These items make minor amendments consequential to making the Electoral Commissioner responsible for all enrolment-related activities.

 

Item 120 - Subsection 114(2)

Item 121 - Subsection 114(2)

Item 122 - Subsection 114(3)

Item 123 - Subsection 114(4)

Item 124 - Subsection 114(4)

Item 125 - Subsection 114(5)

Item 126 - Subsection 114(5)

 

133.      Section 114 sets out who is entitled to make an objection action of a particular kind.  These amendments specify that the Electoral Commissioner, rather than a DRO, is the person with the power to make an AEC-initiated objection.  While the DRO was limited by section 114 to objection action within his or her own Division, the amendments give the power to the Electoral Commissioner to object on certain grounds to an enrolment in any Division.

 

Item 127 - Subsection 115(2)

 

134.      Consequent to the amendments made by the items directly above, item 127 amends section 115 so that a person must lodge a personally initiated objection with the Electoral Commissioner, rather than a DRO.

 

Item 128 - Subsection 116(1)

Item 129 - Subparagraph 116(2)(b)(iv)

Item 130 - Subparagraphs 116(2)(c)(i) and (ii)

Item 131 - Subsection 116(3)

Item 132 - Subsection 116(4)

 

135.      Section 116 requires that a notice must be sent to an elector who is the subject of an objection action (the challenged elector) setting out specified information.  The amendments made by these items mainly substitute references to ‘DRO’ with ‘Electoral Commissioner’.  Item 129 amends the information in the notice that is sent to a challenged elector by requiring that the notice advises the elector of what he or she must do if he or she wishes to answer the objection.  It is intended that the notice will set out a range of options for the challenged elector.  This approach is to provide more flexibility in how a challenged elector may answer an objection than that currently provided by section 117.

 

Item 133 - Section 117

 

136.      As noted directly above, the amendment proposed by item 129 seeks to provide challenged electors with more flexibility in answering objections.  Accordingly, item 133 repeals section 117 as it is no longer required.

 

Item 134 - Subsection 118(1)

Item 135 - Paragraph 118(1)(a)

Item 136 - Subsection 118(2)

Item 137 - Subsection 118(2)

Item 138 - Subsection 118(3)

Item 139 - Subsection 118(4)

Item 140 - Subsection 118(4A)

Item 141 - Subsection 118(5)

Item 142 - Subsection 118(6)

 

137.      Section 118 provides for how an objection is determined.  These amendments substitute references to ‘officer’ and ‘DRO’ with ‘Electoral Commissioner’.

 

138.      Part X provides for a review of specified enrolment-related decisions.  In most instances a review of a decision by a DRO is undertaken by an AEO, and then if the person wishes, may seek a review of the AEO’s decision in the Administrative Appeals Tribunal (AAT).  If an AEO makes the decision at first instance then the person may seek a review in the AAT if it is a decision that may be reviewed by the AAT.  The amendments to this Part proposed by the Bill do not seek to substantially change the existing arrangements.

 

Item 143 - Before subsection 120(1)

Item 144 - Subsection 120(1)

Item 145 - Paragraphs 120(1)(a) and (b)

Item 146 - Subsection 120(1)

Item 147 - Subsection 120(2)

Item 148 - Subsection 120(2)

Item 149 - Subsection 120(3)

Item 150 - Paragraph 120(3)(aa)

Item 151 - Paragraphs 120(3)(a) and (b)

Item 152 - Paragraphs 120(3)(ba) and (bb)

Item 153 - Paragraphs 120(3)(c) and (ca)

Item 154 - Subsection 120(3)

Item 155 - Paragraphs 120(3)(d) and (fa)

Item 156 - Paragraph 120(3)(fb)

Item 157 - Subsection 120(3)

Item 158 - Subsections 120(4) to (9)

 

139.      Section 120 provided for a review by an AEO of specified decisions made by a DRO.  The amendments recast the provision so that it applies for an internal review of decisions made by a delegate of the Electoral Commissioner who is not the Deputy Electoral Commissioner or an Australian Electoral Officer.  The amendments also substitute references to Divisional Returning Officers and Australian Electoral Officers with references to the Electoral Commissioner, and make other minor amendments consequential to making the Electoral Commissioner responsible for all enrolment-related activities.

 

140.      Item 158 repeals and substitutes reworked subsections 120(4), (5) and (6) essentially to remove the duplication with subsection 120(3).  Item 158 also repeals subsections 120(7), (8) and (9) which are superfluous given section 27A of the Administrative Appeals Tribunal Act 1975 .  This provision requires a person to be informed of a reviewable decision and that person’s right to have the decision reviewed.

 

Item 159 - Before subsection 121(1)

Item 160 - Paragraphs 121(1)(a) to (d)

 

141.      Section 121 provides that a person may apply to the AAT for review of decisions made under specified provisions of the Electoral Act.  These items provide that a person may seek a review by the AAT of a decision specified in subsection 121(1) made by the Electoral Commissioner, the Deputy Electoral Commissioner, an Australian Electoral Officer or from an internal review decision made under new subsection 120(5).  These amendments do not affect a person’s current review rights.

 

Item 161 - Section 122

 

142.      Item 161 makes consequential amendments to the application provisions of Part X.  These consequential amendments are required due to ‘Electoral Commissioner’ replacing any references to ‘Australian Electoral Officer’, ‘Divisional Returning Officer’ and ‘Assistant Returning Officer’ throughout Part X.

 

Item 162 - Subsection 184A(1)

Item 163 - Section 184B

 

143.      Section 184A enables a person to apply to become registered as a general postal voter if he or she satisfies one of the grounds specified in subsection 184A(2).  A Register of General Postal Voters is then kept under section 184B at each Divisional Office for that Division.  These items amend references to the DRO and make other minor changes to provide that a person applies to the Electoral Commissioner to be registered as a general postal voter and that it is the Electoral Commissioner who is tasked with the responsibility of keeping the Register.

 

Item 164 - Subsection 185(1)

Item 165 - Subsection 185(1A)

Item 166 - Subsection 185(1A)

Item 167 - Subsection 185(1B)

Item 168 - Subsections 185(2) and (3)

Item 169 - Subsection 185(4)

Item 170 - Subsection 185(4A)

Item 171 - Subsections 185(5) and (6)

 

144.      Section 185 provides for the registration of general postal voters.  These items make the necessary changes to entrust the Electoral Commissioner, rather than a DRO, with the responsibility for registering general postal voters.  The substantive operation of the provisions is unchanged.

 

Item 172 - Section 185B

 

145.      The amendments proposed by item 172 will provide that it is the Electoral Commissioner, and not the Electoral Commission, who may conduct a review of the Roll in relation to general postal voters.   The responsibility for conducting such a review is consistent with the approach for reviews of other elector enrolment which is initiated internally by the AEC using ‘objection action’.  The proposed amendment is also consistent with the Electoral Commissioner’s new enrolment-related responsibilities provided for elsewhere in the Bill.  Finally, it is appropriate that the Electoral Commissioner as chief executive officer of the agency has the responsibility for conducting reviews.

 

Item 173 - Section 185C

 

146.      Item 173 repeals section 185C and substitutes a new section to provide that it is the Electoral Commissioner, and not a DRO, who may cancel an elector’s registration as a general postal voter.  The previous obligation on a DRO to provide written notice of the decision and review rights available to the elector is now placed upon the Electoral Commissioner.  The new section does not limit the requirement to give to the elector this notice either ‘personally or by post’ to provide more flexibility in how the notice may be delivered.

 

Item 174 - Subsection 249(1)

Item 175 - Subsection 249(2)

Item 176 - Subsection 249(3)

Item 177 - Subsection 249(4)

Item 178 - Subsection 249(6)

 

147.      Section 249 provides that an elector who is, or expects to be, in Antarctica in the course of employment, may request to be treated as an Antarctic elector.  The amendments made by these items simply substitute references to ‘Divisional Returning Officer’ and ‘DRO’ with ‘Electoral Commissioner’ and make other minor changes to provide that it is the Electoral Commissioner and not a DRO responsible for this function.

 

Item 179 - Subsection 343(1)

Item 180 - Subsection 343(1)

 

148.      Section 343 requires any person who accepts, for transmission to a DRO, specified enrolment claims must do so forthwith.  These items substitute the references to ‘Divisional Returning Officer’ with ‘Electoral Commissioner’.

 

Item 181 - After section 381A

 

149.      The amendments contained in this item give effect to recommendation 9 of the JSCEM Report.  In particular, the amendments will enable enrolled voters to provide electronic information to the AEC that can be used to update the electoral Roll (parts VII, VIII, IX or X), make an application to be a general postal voter (section 184A) or apply to be an Antarctic elector (section 249) without the need for a signature. 

 

150.      New subsection 382(1) sets out the type of enrolment-related claims and notices that may be sent electronically to the Electoral Commissioner.  New subsections 382(2), (3) and (4) contain a power for the Electoral Commissioner to determine the addresses (including electronic addresses) to which enrolment claims may be sent.  The power also enables the Electoral Commissioner to be able to determine different addresses for different types of claims.  When a person sends a claim to an address determined by the Electoral Commissioner, subsection 382(5) makes it clear that the claim will be taken to have been sent to the Electoral Commissioner.  New subsection 382(6) makes it clear that a determination of an address by the Electoral Commissioner is not a legislative instrument under the Legislative Instruments Act.

 

151.      New subsections 382(7) and (8) will enable certain categories of claims to be received and acted upon by the Electoral Commissioner without the need for the receipt of a hard copy document containing a signature.  New subsection 382(7) will enable the Electoral Commissioner to act on enrolment-related claims on the receipt of relevant details provided electronically by an enrolled voter.  The existing regime in the Electoral Act requires the submission to the AEC of a hardcopy claim form.  These amendments to the Electoral Act provide for the making of regulations to enable the AEC to request prescribed information from electors (e.g. date of birth and drivers licence number) to ensure that the electronic transaction is authentic and is being undertaken by the elector to whom the information relates.  The changes to enrolment-related claims without a signature are limited by the requirements of paragraphs (a) to (c) which require that the person is already enrolled.

 

152.      In addition to the requirement that the person is already enrolled new subsection 382(7) foreshadows the making of regulations which will prescribe minimum identity verification information that will need to be provided before the Electoral Commissioner can act on the electronic communication.  The use of a regulation making power will ensure that as online eligibility checking methods and technology improve, regulations can be made that adopt the new technology without the need to amend the Electoral Act.  However, at this time it is envisaged that the regulations will refer to details that will only be known to the enrolled voter such as motor vehicle licence number, passport number or citizenship number which already form part of the evidence of identity checks which are used by the AEC.

 

153.      New subsection 382(8) will enable regulations to be made that exempt the revised verification processes in subsection 382(7) from applying to particular electronic communications to the AEC.  This will enable different eligibility checking and signature requirements to apply to different categories of claims made under the Electoral Act in recognition of the different needs and available sources of verification information that is currently available and which may also be made available in the future.  Some types of claims are also specifically excluded from the proposed new arrangements. 

 

Referendum (Machinery Provisions) Act 1984

 

Item 182 - Subsection 3(1) (at the end of the definition of officer )

 

154.      This item amends the definition of ‘officer’ for the same reasons as discussed at item 1 but for the purposes of the Referendum Act.

 

Item 183 - Subsection 38(1)

Item 184 - Paragraph 38(5)(b)

Item 185 - Subsection 38(7)

 

155.      Subsection 38(1) provides that, in specified circumstances, a person may apply for provisional enrolment to a DRO.  Item 183 makes a straightforward substitution of ‘the Electoral Commissioner’ for ‘a Divisional Returning Officer’.

 

156.      Items 184 and 185 make similar substitutions as item 183 with the effect that the Electoral Commissioner becomes responsible for keeping records under paragraph 38(5)(b) or informing the person under subsection 38(7), rather than the DRO for the Division in which the person is provisionally enrolled.

 

Item 186 - After section 38

 

157.      Item 186 inserts a new section 39 into the Referendum Act.  This new section contains a power for the Electoral Commissioner to determine the addresses (including electronic addresses) to which applications under section 38 may be sent.  The power also enables the Electoral Commissioner to be able to determine different addresses for use in different circumstances.  When a person sends an application to an address determined by the Electoral Commissioner, subsection 39(4) makes it clear that the application will be taken to have been sent to the Electoral Commissioner.  New subsection 39(5) makes it clear that a determination of an address by the Electoral Commissioner is not a legislative instrument under the Legislative Instruments Act.

 

Item 187 - Subsection 74(2)

 

158.      Section 74 is the interpretative section in relation to voting in Antarctica at a referendum.  The item makes a straightforward substitution of ‘Electoral Commissioner’ for ‘a Divisional Returning Officer’.

 

Item 188 - Subsections 138(2) and (3)

 

159.      This item amends the delegation power for the same reasons as discussed at item 3 for the purposes of the Referendum Act.

 

Part 2 - Transitional, application and saving provisions

 

Item 189 - Regulations

 

160.      Item 189 makes it clear that the Governor General may make regulations of a transitional, application or saving nature in relation to the amendments and repeals made by this Schedule 2.

 

Schedule 3 - Amendments relating to nomination of candidates

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

161.      The amendments contained in this Schedule are aimed at addressing a concern that the Electoral Act should contain restrictions on the number of candidates that a single registered political party is able to nominate as endorsed candidates for a single Division in any State or Territory.  One of the benefits that are given to a political party that is registered under Part XI of the Electoral Act is that the mode of nomination can be made solely by the registered officer without the need to obtain the signatures of 50 nominators who are entitled to vote in the election (see subsection 166(1)).  A further benefit is that the name, or registered abbreviation, of the registered political party is printed on the ballot papers adjacent to the name of the candidate endorsed by the registered officer of the political party. 

 

162.      At the by-election for the Division of Bradfield that was held on 5 December 2009 a total of 22 candidates appeared on the ballot paper.  This high number included nine candidates nominated by the registered officer of the Christian Democratic Party (Fred Nile Group).  The informal vote at the 2009 by-election for the Division of Bradfield was 9 per cent.  This was more than double that at the 2007 election (3.99 per cent) where only six candidates appeared on the ballot paper and was the highest ever recorded for the Division of Bradfield.  The amendments contained in this Schedule will provide that a registered officer of a registered political party is only able to nominate one candidate as an endorsed candidate for a single Division in any State or Territory.

 

Item 1 - Subsection 166(1)

 

163.      This is a technical provision which amends subsection 166(1) of the Electoral Act by inserting a reference to the new section 166(1AA) so that it is clear that the requirements of lodging a valid nomination in subsection 166(1) are subject to the requirements of the new subsection 166(1AA).

 

Item 2 - After subsection 166(1A)

 

164.      This amendment inserts new subsection 166(1AA) into the Electoral Act.  This new subsection makes it clear that for any House of Representatives election (including a by-election) for a single Division in any State or Territory that a registered officer is only able to nominate one candidate as an endorsed candidate on behalf of the particular registered political party.  The note to this subsection makes it clear that this amendment does not affect the existing provisions relating to the withdrawal of consent of a candidate or where a candidate dies after the nomination.

 

Item 3 - Subsection 172(1)

 

165.      This is a technical amendment which amends subsection 172(1) of the Electoral Act by inserting a reference to the new subsection 172(1A) so that it is clear that a nomination shall be rejected where the registered officer of a party fails to comply with the requirements of the new subsection 166(1AA) by purporting to nominate more than one endorsed candidate on behalf of the registered political party for a single Division in any State or Territory.

 

Item 4 - After subsection 172(1)

 

166.      This amendment inserts new subsection 172(1A) into the Electoral Act.  This new subsection addresses what action the AEC is required to take where a bulk nomination under subsection 167(3) is received from a registered officer of a political party which includes 2 or more endorsed candidates for a single Division in breach of the requirements of new subsection 166(1AA). 

 

167.      There are two ways in which a registered officer is able to nominate endorsed candidates for a House of Representatives election.  The first way that a candidate is able to be nominated by the registered officer is by lodging a nomination form with the relevant DRO for that Division (see subsection 167(2)).  In the case where a nomination is made containing 2 or more candidates in breach of the requirements of new subsection 166(1AA) the nomination for all of the candidates must be rejected.

 

168.      The second way that a candidate is able to be nominated by a registered officer is by lodging what is referred to as a ‘bulk nomination’ with the relevant AEO for the State or Territory (see subsection 167(3)).  In this situation, the nomination must include ‘all of the candidates’ for the registered political party which have been endorsed to stand for election in the Divisions situated in the particular State or Territory for which the relevant AEO is responsible.

 

169.      The new subsection 172(1A) provides that where a bulk nomination has been received by the AEO and it includes two or more candidates for a single Division (in breach of the requirements of new subsection 166(1AA)), the AEO must reject the bulk nomination for the two or more same Division candidates, but the remainder of the bulk nomination will be valid.

 

170.      The above amendments will not affect the existing application of the Electoral Act where a bulk nomination will be invalidated under section 172 if the registered officer of the same registered political party purports to lodge an individual nomination for an endorsed candidate with a DRO and that candidate was not included in the bulk nomination lodged with the AEO.  In this situation the requirements of subsection 167(3) will not be met because the registered officer did not include all of the candidates in the bulk nomination lodged with the AEO.

 

171.      Accordingly, the existing practice will remain that if a registered officer has forgotten to include a candidate in a bulk nomination this is unable to be rectified by the registered officer lodging a single nomination with a DRO.  The registered officer will need to lodge individual nominations with all the DROs in a State or Territory prior to the close of nominations (which is 48 hours after the close of bulk nominations - see subsection 170(2)) if they have forgotten to include a candidate or have included two or more candidates for a single Division in the bulk nomination.

 

Part 2 - Application of amendments

 

Item 5 - Application of amendments

 

172.      Item 5 makes it clear that the amendments relating to nomination of candidates only apply prospectively to elections the writs for which are issued on or after the commencement of Schedule 3.

 

 

Schedule 4 - Electronic Voting

 

173.      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 the 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 Schedule 4 there is no capacity in the Electoral Act or Referendum Act to provide sight-impaired voters with a secret and independent vote.

 

174.      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. 

 

175.      The amendments in this Schedule 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.

 

176.      The amendments in this Schedule provide a legislative framework for the conduct of electronically assisted voting for sight-impaired people at future elections.  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.

 

177.      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.

 

178.      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, general elections, Senate elections 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 to the vote record as apply to other ballot papers.

 

Part 1 - Amendments

Commonwealth Electoral Act 1918

Item 1 - Part XVB (heading)

Item 2 - Division 1 of Part XVB (heading)

 

179.      Item 1 amends the heading of Part XVB to substitute the 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

 

180.      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

 

181.      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 )

 

182.      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)

 

183.      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.

 

184.      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)

 

185.      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)

 

186.      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)

 

187.      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.

 

188.      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)

 

189.      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)

 

190.      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)

 

191.      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)

 

192.      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 verified 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 prior to the declaration vote being included in the count.

 

193.      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)

 

194.      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.

 

195.      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.

 

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

 

Item 18 - Subsection 202AE(2)

 

197.      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

 

198.      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.

 

199.      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.

 

200.      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.

 

Item 20 - Division 2 of Part XVB

 

201.      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)

 

202.      Item 21 amends the heading of Part IVB to substitute the 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

 

203.      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 )

 

204.      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)

 

205.      Item 25 amends subsection 73M(1) to remove the reference to subsection 73M(2).  Subsection 73M(2) is repealed by item 27 below.

 

Item 26 - Subsection 73M(1)

Item 27 - subsection 73M(2)

 

206.      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)

 

207.      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)

 

208.      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)

 

209.      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)

 

210.      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)

 

211.      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)

 

212.      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)

 

213.      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 verified 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 prior to the declaration vote being include in the count.

 

214.      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)

 

215.      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.

 

216.      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.

 

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

 

Item 37 - Subsection 73Q(2)

 

218.      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

 

219.      Item 38 inserts new section 73QA into the Referendum Act as a parallel amendment to the Electoral Act by item 19 above.  New section 73QA provides for the Electoral Commissioner to decide in writing that electronically assisted voting 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.

 

220.      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.

 

221.      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.

 

222.      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

 

223.      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.

 

Part 2 - Application of amendments

 

Item 40 - Application of amendments

 

224.      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.