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Electoral and Referendum Amendment (Modernisation 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 (MODERNISATION 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 (MODERNISATION AND OTHER MEASURES) BILL 2010

 

OUTLINE

The Electoral and Referendum Amendment (Modernisation 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).  The Bill implements the Government response to the majority of the recommendations made in the JSCEM Report requiring legislative amendment.  The Bill also makes a number of minor amendments that are consistent with, or incidental to, the amendments made in response to the JSCEM Report.

 

The Bill contains provisions that:

·            remove the requirement to publish enrolment and election-related forms and information in the Government Gazette and substitute the requirement for the Electoral Commissioner to publish the information, at a minimum, on the Australian Electoral Commission’s (AEC) website;

·            provide that a person making an application for enrolment or changing the name under which they are enrolled (which does not include amending address details) needs to include with their application either their driver’s licence number, passport number or an attestation of identity signed by an enrolled elector;

·            reduce the age at which people may provisionally enrol from 17 years old to 16 years old;

·            allow for electronic Roll information to be provided to parliamentarians and allow for electronic certified lists;

·            introduce flexibility to print ballot papers at the local level by removing the technical requirement for ballot-papers to be ‘overprinted’;

·            introduce one form of mobile polling which may visit anywhere that the Electoral Commissioner determines.  The amendment removes inconsistencies that currently exist in the arrangements for visits at various places or institutions;

·            enable a person to apply for a postal vote electronically by removing the requirement for an application for a postal vote to be signed and witnessed;

·            prohibit written material from being attached to a postal vote application;

·            clarify that a right to inspect the electoral Roll does not include the right to electronically copy or record the Roll;

·            allow the AEC to provide the postal address of general postal voters to state and territory electoral commissions;

·            introduce specific provisions to facilitate enrolment and continued enrolment for people experiencing homelessness;

·            expand the grounds upon which a person may apply for a pre-poll or postal vote; and

·            make a number of minor technical amendments.

 

FINANCIAL IMPACT STATEMENT

The costs associated with implementation of the measures contained in this Bill are estimated at approximately $3.3M.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

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

 

Clause 2 - Commencement

 

2.              As the date of the next federal election is not known at this stage, some Schedules, or elements of Schedules, commence on Proclamation to provide some flexibility in implementation.  Other Schedules are drafted to commence after Royal Assent and the commencement of specified Schedules in the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 due to the interaction between measures contained in Schedules to the two Acts.

 

3.              Sections 1 to 4 commence upon Royal Assent.  Part 1 of Schedule 1, Part 1 of Schedule 4, Division 1 of Part 2 of Schedule 4, Part 3 of Schedule 4, Schedule 8 and Schedule 9 commence on the day after Royal Assent.  Schedule 5, Part 1 of Schedule 6, Part 2 of Schedule 6 and Schedule 7 commence on a single day to be fixed by Proclamation or, if not proclaimed earlier, 6 months following Royal Assent.  Part 2 of Schedule 1, Schedules 2 and 3, and Division 2 of Part 2 of Schedule 4 commence only after Royal Assent and specified provisions of the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 commence.

 

Clause 3 - Schedule(s)

 

4.              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.

 

Clause 4 - Regulations

 

5.              This clause provides that the Governor-General may make regulations of a transitional, application or savings nature in relation to the amendments and repeals made by the Act.

 

Schedule 1 - Publishing forms and information about places to vote

 

Part 1 - Amendments commencing on the day after Royal Assent is given

 

Commonwealth Electoral Act 1918

 

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

Item 2 - Subsection 4(1)

Item 3 - Saving provision for approved forms

 

6.              Throughout the Electoral Act is the requirement for people to provide information to the AEC in an ‘approved’ form.  ‘Approved’ is defined in subsection 4(1) of the Electoral Act to mean ‘approved by the Electoral Commission by notice published in the Gazette ’.

7.              The requirement to gazette a range of ‘approved’ forms is intended to provide transparency in the electoral process and ensure that members of the public have access to relevant forms.  However, having the Electoral Commission or its delegate approve a form which is then published in the Gazette is a rigid, time consuming and expensive process.  It is also not the most effective way to ensure members of the public have access to such information.

 

8.              In recognition of the trend for people to access the websites of organisations for information relevant to that organisation and the increased use by the AEC of technology, such as SmartForms, to engage with the community, the amendments propose a new regime for the publication of approved forms.  The proposed regime gives effect to recommendation 41 of the JSCEM Report.

 

9.              Item 1 repeals the definition of ‘Approved’ from subsection 4(1) of the Electoral Act.

 

10.          Item 2 inserts a new definition of ‘approved forms’ into subsection 4(1) to mean a form that is approved by the Electoral Commissioner in writing and has been published by the Electoral Commissioner.  The Electoral Commissioner, rather than the Electoral Commission, is given the power to approve forms in recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC.  The intention is that approved forms will be published, at a minimum, on the AEC’s website or made available on another website, such as SmartForms. 

 

11.          Item 3 is a technical amendment to ‘save’ the legal effect of forms that were approved under the arrangements before the amendments commence.

 

Item 4 - Section 37

 

12.          Item 4 repeals Section 37 of the Electoral Act.  This section requires Divisional Returning Officers (DROs) and Assistant Divisional Returning Officers (ADROs) to keep enrolment-related forms at Divisional Offices, to supply them without fee to the public on request, and to assist the public in their proper use.

 

13.          This anachronistic provision has not been amended since 1983 and is not consistent with modern flexible practices.  With the move to Smart Forms, and the fact that, in practice, DROs might print forms on demand, a provision requiring the AEC to keep a supply of pre-printed forms is expensive and no longer necessary.  AEC internal policies and procedures also mean that there is no need to have a statutory provision prohibiting a fee to be charged for forms or a statutory obligation to provide assistance.

 

Item 5 - Subsection 80(1)

Item 6 - Paragraph 80(1)(a)

Item 7 - After subsection 80(2)

Item 8 - Subsection 80(3)

Item 9 - Savings provision for polling places

 

14.          Subsection 80(1) of the Electoral Act provides that the Electoral Commission may, by notice in the Gazette , appoint or abolish polling places.  Item 5, consistent with the amendments proposed by items 1, 2 and 3, recasts this provision to provide that the Electoral Commissioner may, in writing, appoint and abolish polling places.

15.          The Electoral Commissioner, rather than the Electoral Commission, is given the power to appoint or abolish polling places in recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC.  Item 6 makes a consequential amendment to paragraph 80(1)(a) to refer to the Electoral Commissioner as ‘he’ or ‘she’ rather than ‘it’ as it was for the Electoral Commission.

 

16.          To update the obligation to Gazette information about the abolition or appointment of polling places, Item 7 requires the Electoral Commissioner to publish such information on the AEC’s website.  The Electoral Commissioner may also publish the information in any other way that he or she considers appropriate.

 

17.          Item 8 is a consequential amendment as a result of the changes made by Item 5 to refer to the Electoral Commissioner, rather than the Electoral Commission, in subsection 80(3).

 

18.          Item 9 is a technical amendment to ‘save’ the legal effect of polling places that were appointed under the arrangements that existed before the amendments commence.

 

Item 10 - Subsection 200BA(1)

Item 11 - Subsection 200BA(2)

Item 12 - Paragraph 200BA(2)(a)

Item 13 - Paragraph 200BA(2)(b)

Item 14 - Paragraph 200BA(2)(b)

Item 15 - Subsection 200BA(3)

Item 16 - Paragraph 200BA(3)(b)

Item 17 - At the end of section 200BA

Item 18 - Savings provision for pre-poll offices

 

19.          These items make similar changes to provisions relating to the declaration of pre-poll voting offices that items 5 to 9 made for the appointment and abolition of polling places.

 

20.          In recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC, Item 10 gives the responsibility to the Electoral Commissioner, rather than the Electoral Commission, for declaring specified places to be pre-poll voting offices.  The Electoral Commissioner may also declare the days and times a person may apply for a pre-poll vote.  Item 11 makes a consequential amendment to references to ‘Commission’ in subsection 200BA(2).

 

21.          For the reasons outlined under items 1 to 3, Item 12 repeals the requirement to gazette a declaration made under subsection 200BA(1) and substitutes a requirement to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish a declaration in any other way that he or she considers appropriate.

 

22.          Item 13 makes a consequential amendment to a reference to ‘Commission’ in paragraph 200BA(2)(b).

 

23.          For the reasons outlined under items 1 to 3, Item 14 repeals the requirement to gazette a declaration made in exceptional circumstances and substitutes a requirement to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish such a declaration in any other way that he or she considers appropriate.

 

24.          Item 15 and 16 make consequential amendments to subsection 200BA(3) to a reference to ‘Commission’ and to paragraph 200BA(3)(b) to a reference to ‘if it’.

 

25.          Item 17 clarifies that a failure to publish a declaration made under subsection 200BA(1) does not affect the validity of the declaration, while Item 18 is a technical amendment to ‘save’ the legal effect of pre-poll voting offices that were declared under the arrangements that existed before the amendments commence.

 

Referendum (Machinery Provisions) Act 1984

 

Item 19 - Subsection 3(1) (definition of approved )

Item 20 - Subsection 3(1)

Item 21 - Saving provision for approved forms

 

26.          Throughout the Referendum Act references are made to ‘approved’ forms.  Similar to the Electoral Act, ‘approved’ is defined in subsection 3(1) of the Referendum Act to mean ‘approved by the Electoral Commission by notice published in the Gazette ’.

 

27.          Recommendation 45 of the JSCEM Report recommended that the Referendum Act is amended so that it is consistent with the Electoral Act.  Accordingly, items 19 to 21 propose similar amendments to the Referendum Act as those proposed for the Electoral Act as set out in items 1 to 3.

 

28.          Item 19 repeals the definition of ‘Approved’ from subsection 3(1) of the Referendum Act.

 

29.          Item 20 inserts a new definition of ‘approved forms’ into subsection 3(1) to mean a form that is approved by the Electoral Commissioner in writing and has been published by the Electoral Commissioner.  The Electoral Commissioner, rather than the Electoral Commission, is given the power to approve forms in recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC.  The intention is that approved forms will be published, at a minimum, on the AEC’s website.

 

30.          Item 21 is a technical amendment to ‘save’ the legal effect of forms that were approved under the arrangements before the amendments commence.

 

Item 22 - Subsection 16(2)

Item 23 - Subsection 16(3)

 

31.          Section 16 provides that polling places appointed pursuant to paragraph 80(1)(a) of the Electoral Act are polling places for the purposes of a referendum.  Consistent with amendments to the Electoral Act, these items substitute references to the ‘Electoral Commission’ with ‘Electoral Commissioner’ in recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC.

 

Item 24 - Subsection 73AA(1)

Item 25 - Subsection 73AA(2)

Item 26 - Paragraph 73AA(2)(a)

Item 27 - Paragraph 73AA(2)(b)

Item 28 - Paragraph 73AA(2)(b)

Item 29 - Subsection 73AA(3)

Item 30 - Paragraph 73AA(3)(b)

Item 31 - After subsection 73AA(4)

Item 32 - Savings provision for pre-poll voting offices

 

32.          In line with JSCEM recommendation 45, these items make consistent changes to provisions relating to the declaration of pre-poll voting offices for the purposes of a referendum as those proposed by items 10 to 18 for the purposes of an election.

 

33.          In recognition of the evolving role of the Electoral Commissioner as Chief Executive Officer of the AEC, Item 24 gives the responsibility to the Electoral Commissioner, rather than the Electoral Commission, for declaring specified places to be pre-poll voting offices for a referendum.  The Electoral Commissioner may also declare the days and times a person may apply for a pre-poll vote.  Item 25 makes a consequential amendment to references to ‘Commission’ in subsection 73AA(2).

 

34.          For the reasons outlined under items 1 to 3, Item 26 repeals the requirement to gazette a declaration made under subsection 73AA(1) and substitutes a requirement to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish any declaration in any other way that he or she considers appropriate.

 

35.          Item 27 makes a consequential amendment to a reference to ‘Commission’ in paragraph 73AA(2)(b).

 

36.          For the reasons outlined under items 1 to 3, Item 28 repeals the requirement to gazette a declaration made in exceptional circumstances and substitutes a requirement to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish such a declaration in any other way that he or she considers appropriate.

 

37.          Items 29 and 30 make consequential amendments to subsection 73AA(3) to a reference to ‘Commission’ and to paragraph 73AA(3)(b) to a reference to ‘if it’.

 

38.          Item 31 clarifies that a failure to publish a declaration made under subsection 73AA(1) does not affect the validity of the declaration, while Item 32 is a technical amendment to ‘save’ the legal effect of pre-poll voting offices that were declared under the arrangements before the amendments commence.

 

Item 33 - Paragraph 73C(a)

 

39.          Paragraph 73C(a) provides that when a referendum is held on the same day as an election, the places declared under 200BA(1) of the Electoral Act for the purposes of an election are regarded as having been declared under subsection 73AA(1) of the Referendum Act for the purposes of a referendum.  As Item 10 amends the reference in subsection 200BA(1) of the Electoral Act from ‘Electoral Commission’ to ‘Electoral Commissioner’, Item 33 makes a similar amendment to paragraph 73C(a).

 

Part 2 - Amendments with contingent commencement

 

Commonwealth Electoral Act 1918

 

Item 34 - Subsection 200BA(1A)

 

40.          Schedule 1 to the Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Bill 2010 (Pre-poll Bill) will provide that, in specified circumstances, a person may cast a pre-poll vote in his or her ‘home’ Division which will be treated and counted as an ordinary vote, wherever practicable.  Item 9 of Schedule 1 to the Pre-poll Bill inserts new subsection 200BA(1A) which refers to ‘Electoral Commission’.  Item 34 amends the reference in subsection 200BA(1A) from ‘Electoral Commission’ to ‘Electoral Commissioner’.

 

Item 35 - Subsection 200BA(3A)

 

41.          Item 10 of Schedule 1 to the Pre-poll Bill inserts new subsection 200BA(3A) which refers to declarations made by the Electoral Commission and imposes a requirement to publish a copy of the declaration in the Gazette .  Consistent with the amendments proposed at items 11 and 12, Item 35 repeals the requirement to gazette a declaration made under subsection 200BA(1A) and substitutes a requirement for the Electoral Commissioner to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish any declaration in any other way that he or she considers appropriate.

 

Item 36 - Subsection 200BA(5)

 

42.          Item 17 inserts new subsection 200BA(5) which provides that failure to publish a declaration made under 200BA(1) does not affect the validity of the declaration.  Item 9 of Schedule 1 to the Pre-poll Bill inserts new subsection 200BA(1A) which enables the Electoral Commission to declare at which pre-poll voting offices pre-poll ordinary voting is available.  Item 36 amends subsection 200BA(5) so that it includes declarations made under subsection 200BA(1A) following the commencement of Schedule 1 to the Pre-poll Bill.

 

Referendum (Machinery Provisions) Act 1984

 

Item 37 - Subsection 73AA(1A)

 

43.          Schedule 1 to the Pre-poll Bill provides that, in specified circumstances, a person may cast a pre-poll vote in his or her ‘home’ Division which will be treated and counted as an ordinary vote.  Item 53 of Schedule 1 to the Pre-poll Bill inserts new subsection 73AA(1A) which refers to ‘Electoral Commission’.  Item 37 amends the reference in subsection 73AA(1A) from ‘Electoral Commission’ to ‘Electoral Commissioner’.

 

Item 38 - Subsection 73AA(3A)

 

44.          Item 54 of Schedule 1 to the Pre-poll Bill inserts new subsection 73AA(3A) which refers to declarations made by the Electoral Commission and imposes a requirement to publish a copy of the declaration in the Gazette .  Consistent with the amendments proposed at items 25 and 26, Item 38 repeals the requirement to gazette a declaration made under subsection 73AA(1A) and substitutes a requirement for the Electoral Commissioner to publish such declarations on the AEC’s website.  The Electoral Commissioner may also publish any declaration in any other way that he or she considers appropriate.

 

Item 39 - Subsection 73AA(4A)

 

45.          Item 31 inserts new subsection 73AA(4A) which provides that failure to publish a declaration made under 73AA(1) does not affect the validity of the declaration.  Item 53 of Schedule 1 to the Pre-poll Bill inserts new subsection 73AA(1A) which enables the Electoral Commission to declare at which pre-poll voting offices pre-poll ordinary voting is available.  Item 36 amends subsection 73AA(4A) so that it includes declarations made under subsection 73AA(1A) following the commencement of Schedule 1 to the Pre-poll Bill.

 

Schedule 2 - Evidence of identity for enrolment

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

46.          The Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006 (the 2006 Act) introduced an evidence of identity requirement for people enrolling, or updating their enrolment details.

 

47.          The evidence of identity system introduced by the 2006 Act has three ‘tiers’:

(a)     A person enrolling, or updating his or her enrolment details, has to supply a driver’s licence number.

(b)    If the person does not have a driver’s licence, he or she must show a prescribed document (for example a birth certificate) to an authorised person (for example a nurse) who is an enrolled elector.

(c)     If the person cannot meet either requirement (a) or requirement (b), he or she must have his or her enrolment form countersigned by two electors who are on the Commonwealth electoral roll, and who have known the person for at least one month.

 

48.          The amendments in Part 1 of Schedule 2 provide that only a person making an application for enrolment, or a person changing the name in which he or she is enrolled, will need to provide evidence of identity with the enrolment application.  Rather than the current hierarchical arrangements, the proposed flat structure means any one of the following forms of evidence of identity will be sufficient: driver’s licence number, passport number or the signature of a person currently on the electoral roll who attests to the identity of the person applying for enrolment.  If an elector is simply changing his or her address details then evidence of identity is not required.

 

49.          The amendments give effect to recommendation 7 in the JSCEM Report.

 

Item 1 - Subsections 94A(2), (2AA), (2AB) and (2A)

 

50.          Section 94A provides for enrolment from outside of Australia.  Item 1 repeals redundant provisions and recasts subsection 94A(2) to provide what an application must include to meet the new requirements.

 

Item 2 - Paragraph 94A(5)(aa)

 

51.          Item 2 repeals paragraph 94A(5)(aa) as this paragraph is now redundant following the amendments made by Item 1.

 

Item 3 - Subsections 95(2), (2AA), (2AB) and (2A)

 

52.          Section 95 provides for the enrolment of spouses and children of eligible overseas electors.  Similar to Item 1, Item 3 repeals redundant provisions and recasts subsection 95(2) to provide what an application must include to meet the new requirements.

 

Item 4 - Paragraph 95(5)(b)

 

53.          Item 4 repeals paragraph 95(5)(b) as this paragraph is now redundant following the amendments made by Item 3.

 

Item 5 - Subsections 96(2), (2AA) and (2B)

 

54.          Section 96 provides for enrolment of itinerant electors.  Similar to Item 1, Item 5 repeals redundant provisions and recasts subsection 96(2) to provide what an application must include to meet the new requirements.

 

Item 6 - Section 98AA

 

55.          Item 6 makes the substantive amendments to the evidence of identity scheme for enrolment.  Item 6 repeals the existing provision that establishes the hierarchical tiered structure and substitutes provisions establishing the new flat structure.

 

56.          New subsection 98AA(1) provides that the new requirements for evidence of identity apply to a person that makes an application or claim under the provisions providing for enrolment from outside of Australia, as a child or spouse of an eligible overseas elector, or as an applicant for citizenship.  The new requirements also apply to people who make an application or claim as an itinerant elector, or for standard enrolment if the person is not already enrolled, or if the person wants to change the name under which he or she is enrolled.  If an elector is simply changing his or her address details then evidence of identity is not required.

 

57.          New subsection 98AA(2) establishes the new arrangements for evidence of identity for enrolment.  Any one of three of the following forms of evidence of identity will be sufficient: driver’s licence number, passport number or the signature of a person currently on the electoral roll who attests to the identity of the person applying for enrolment. 

 

58.          To account for changes in identity documentation over time, new paragraph 98AA(2)(d) provides that any other evidence of the person’s identity is acceptable if prescribed in regulations for the purpose of this paragraph.

 

Item 7 - Subsections 98(2), (2AA) and (2AB)

 

59.          Section 98 is the provision under which all non-special category enrolment takes place.  Similar to Item 1, Item 7 repeals redundant provisions and recasts subsection 98(2) to provide what an application must include to meet the new requirements.

 

Item 8 - Subsections 99A(4), (4A) and (4B)

 

60.          Section 99A provides for provisional enrolment for applicants for Australian citizenship.  Similar to Item 1, Item 8 repeals redundant provisions and recasts subsection 99A(4) to provide what an application must include to meet the new requirements.

 

Item 9 - Paragraph 99A(6)(a)

 

61.          Item 9 corrects the cross reference in paragraph 99A(6)(a) following the amendment made by Item 8 to subsection 99A(4).

 

Item 10 - Before subparagraph 382(8)(b)(i)

 

62.          Item 181 of the Pre-poll Bill inserts new section 382 which enables enrolment-related claims or notices under specified provisions to be sent to the Electoral Commissioner electronically.  Subsection 382(7) provides that the requirement for signature is deemed to have been met in specified circumstances.  Subsection 382(8) provides that enrolment-related claims or notices for the purposes of specified provisions are not exempt from signature requirements.  Item 10 adds to the list of enrolment-related documents and notices in paragraph 382(8)(b) that will still require the provision of a signature an enrolment application or notice that relies upon the attestation as to the person’s identity under subparagraph 98AA(2)(c)(ii).

 

Part 2 - Application of amendments etc.

 

Item 11 - Application of amendments

 

63.          Item 11 is a technical provision to clarify that the amendments made by Schedule 2 apply in relation to claims and applications made on or after the commencement of Schedule 2.

 

Item 12 - Saving provision for approved forms

 

64.          Item 12 is a technical amendment to ‘save’ the legal effect of forms made under specified provisions of the Electoral Act until another form is made for the purpose of a specified provision.

 

Schedule 3 - Age 16 enrolment

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

65.          Currently a person who is 17 years of age may provisionally enrol and will automatically be fully enrolled on his or her eighteenth birthday.  Provisional enrolment for people who are 17 years of age is voluntary.  The AEC has found that provisional enrolment for such people allows the AEC to target enrolment of young people in schools, educational institutions and youth events.  Reducing the age of provisional enrolment from 17 years of age to 16 years of age will enhance the AEC’s ability to actively target young people to combat under-enrolment in young people.

 

66.          Section 100 of the Electoral Act provides that a person who is 17 years of age may make a claim for enrolment.  While the person is ‘enrolled’, there is no ‘right’ to vote due to the operation of paragraph 93(3)(b), subsection 93(4), paragraph 208(2)(b) and subsection 221(3). 

 

67.          These amendments give effect to JSCEM recommendation 12. 

 

Item 1 - Subsection 4(3)

 

68.          Item 1 substitutes ‘age 16’ for ‘age 17’ in subsection 4(3) so that it will read ‘A reference in this Act to age 16 enrolment shall be read as a reference to enrolment in pursuance of section 100’.

 

Item 2 - Subsections 98(1) and (3)

 

69.          Item 2 makes a straight substitution in the two subsections from ‘age 17’ to ‘age 16’.

 

Item 3 - Paragraph 100(1)(a)

 

70.          Section 100 is the substantive provision providing for provisional enrolment by 17 year olds.  Item 3 omits the reference to ‘17 years’ and substitutes ‘16 years’ to provide 16 year olds with the option to provisionally enrol.

 

71.          A legislative note provides that the heading to section 100 is altered by omitting ‘age 17’ and substituting ‘age 16’.

 

Item 4 - Paragraph 108(a)

Item 5 - Paragraph 120(1)(a)

Item 6 - Paragraph 121(1)(c)

Item 7 - Section 342

Item 8 - Subsection 343(1)

 

72.          Items 4 to 8 make a straight substitution from ‘17 years’ or ‘age 17’ to ‘16 years’ or ‘age 16’.

 

Part 2 - Application of amendments

 

Item 9 - Application of amendments

 

73.          Sub-item 9(1) provides that the amendments made by all items except Item 4 apply to claims made on or after the commencement of Schedule 3.  As Item 4 is not in relation to enrolment, but concerns information provided to the AEC by the Registrar-General, it is placed in a separate sub-item 9(2).  This sub-item provides that the amendment made by Item 4 applies to lists required to be forwarded after the commencement of Schedule 3.

 

Schedule 4 - Electoral rolls, related lists and ballot papers

 

Part 1 - Printed and electronic copies of rolls etc.

 

Commonwealth Electoral Act 1918

 

74.          The Electoral Act currently provides for Senators and Members to receive specified electoral Roll information at specified times.  The Electoral Act also requires the ‘latest print of the roll’ to be provided. 

 

75.          Rather than the ‘latest print of the roll’, the amendments allow for Senators and Members to receive the electoral Roll information to which they are entitled in an electronic format.  The amendments specifically provide that:

(a)     where the Electoral Act entitles a Senator or Member to receive one copy of a Roll or certified list, the Senator or Member may opt for the relevant copy to be supplied in electronic form rather than printed hardcopy form; and

(b)    where the Electoral Act entitles a Senator or Member to receive three copies of a Roll or certified list, the Senator or Member may opt to receive one of the copies in electronic rather than printed hardcopy form and to receive either zero, one or two printed hardcopies.

 

76.          Amendments to provisions relating to the supply of copies of the Roll will provide the latest up to date version of the Roll rather than the ‘latest print of the Roll’.  Copies of the certified list that are provided will be the certified list for the last election at which the relevant Senator or Member was a candidate.

 

77.          The amendments providing for the provision of electronic copies of the Roll to Members and Senators give effect to recommendation 50 in the JSCEM Report.

 

Item 1 - Section 89

 

78.          Subsection 89 of the Electoral Act requires that the electoral Roll be printed at a regular interval.  The requirement to produce paper print-outs of the Roll is expensive and wasteful as well as being largely defunct given the Commission’s powers in section 90 to determine the manner and form in which information is to be provided under Part VI of the Electoral Act.  Section 90 specifically includes ‘electronic form’. 

 

79.          While in the past the AEC might have fulfilled its obligations under section 90A for public inspection of the Roll by providing printed Rolls for people to examine, it now provides computer terminals with search capacity.  It also provides electoral Roll information via CD-ROMs.  Items 2 to 5 provide capacity for Senators and Members to receive electronic copies of the electoral Roll rather than hardcopy prints.  The AEC retains the ability to print the electoral Roll as necessary.

 

80.          Item 1 will repeal section 89 of the Electoral Act.

 

Item 2 - Subsection 90B(1) (cell at table item 2, column headed “information to be given”)

Item 3 - Subsection 90B(1) (cell at table item 8, column headed “information to be given”

Item 4 - Subsection 90B(1) (cell at table item 12, column headed “information to be given”)

 

81.          Items 2 to 4 recast the information that may be provided under these table items to remove references to ‘latest print of the Roll’.

 

Item 5 - After subsection 90B(3)

 

82.          Item 5 inserts new subsections 90B(3A) to (3D).  These subsections generally provide that the AEC may comply with the requirements of subsection 90B(1) by providing a single electronic copy, and if requested and entitled, a further one or two other copies of the relevant document.

 

83.          New subsection 90B(3D) clarifies that new subsections (3A), (3B) and (3C) do not limit the operation of subsections 90(1) and (2) or the Electronic Transactions Act 1999 in relation to subsection (1) of this section.

 

Part 2 - Electronic lists of voters

 

Division 1 - Amendments commencing on the day after Royal Assent is given

 

84.          The Electoral Act and the Referendum Act currently require the Electoral Commissioner to prepare a list of voters for each Division and then certify that list.  The Electoral Act and the Referendum Act require a person who issues votes at an election or referendum to mark the certified list against the name of a person who has been issued with a ballot paper.

 

85.          The amendments will provide for a new definition of ‘approved list’ of voters which is a list in electronic form that contains the same information as the certified list and is approved by the Electoral Commissioner.  The amendments provide for the Electoral Commissioner to decide to use the electronic approved lists at none, some or all polling places.  Electronic approved lists and hard copy certified lists may be used at the same polling place.

 

86.          The requirement for polling officials to mark or record the fact that a person has been issued with a ballot paper is retained.

 

87.          The amendments retain an obligation upon the Electoral Commissioner to ensure that either a hard copy certified list or an electronic approved list is available at places issuing votes. 

 

88.          Consistent amendments are made to the Electoral Act and the Referendum Act.

 

89.          These amendments give effect to recommendation 43 in the JSCEM Report.

 

Commonwealth Electoral Act 1918

 

Item 6 - Subsection 4(1)

 

90.          Item 6 inserts into the Interpretation section of the Electoral Act a definition of ‘approved list’.  An approved list contains the same information as a certified list but is in an electronic form.  Similar to the Electoral Commissioner ‘certifying’ the printed certified list, the Electoral Commissioner will ‘approve’ the electronic list of voters.

 

Item 7 - At the end of paragraph 203(1)(b)

 

91.          Section 203 provides for the arrangements that must be made to prepare for polling day.  Paragraph 203(1)(b) obliges the DRO to provide ‘all necessary certified lists’.  Item 7 adds to the end of that paragraph ‘and approved lists of voters’.

 

Item 8 - After section 208

 

92.          Section 208 sets out the requirements in relation to certified lists.  Item 8 inserts a new section 208A to enable the Electoral Commissioner to arrange for the preparation of approved lists of voters for a Division and make available these lists if the Electoral Commissioner thinks that they should be available.

 

Item 9 - Subsection 229(4)

Item 10 - Section 230

Item 11 - Paragraph 231(1)(a)

 

93.          Consequential to Item 8, items 9 to 11 generally add ‘or an approved list of voters’ to provisions that refer to certified lists.

 

Item 12 - Subsection 232(1)

 

94.          Subsection 232(1) requires an issuing officer at a polling place to place a mark against the name of a person on a certified list of voters who is given ballot papers.  Item 12 recasts the provision to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 13 - Paragraphs 235(1)(a), (b) and (c)

Item 14 - Paragraph 235(1)(d)

Item 15 - Subsection 285(1)

 

95.          Items 13 to 15 are consequential to Item 8 to account for the possibility that an approved list of voters might be used at a polling place.

 

Item 16 - After paragraph 393(1)(b)

Item 17 - Subsections 393A(4) and (5)

 

96.          Item 16 defines an approved list of voters as an ‘electoral document’.  This has the effect of making the DRO responsible for the safe custody of the approved lists of voters in accordance with the directions of the Electoral Commissioner.  Approved lists of voters are exempted from the operation of subsections 393A(4) and (5) by Item 17 as they cannot be parcelled up and sealed like paper documents such as ballot papers.

 

Referendum (Machinery Provisions) Act 1984

 

Item 18 - Subsection 3(1)

 

97.          Item 18 inserts into the Interpretation section of the Referendum Act a definition of ‘approved list’.  An approved list contains the same information as a certified list but is in an electronic form.  Similar to the Electoral Commissioner ‘certifying’ the printed certified list, the Electoral Commissioner will ‘approve’ the electronic list of voters.

 

Item 19 - At the end of paragraph 17(1)(b)

 

98.          Section 17 provides for the arrangements that must be made to prepare for polling day.  Paragraph 17(1)(b) obliges the DRO to provide ‘all necessary certified lists’.  Item 19 adds to the end of that paragraph ‘and approved lists of voters’.

 

Item 20 - After section 22

 

99.          Section 22 sets out the requirements in relation to certified lists.  Item 20 inserts a new section 22A to enable the Electoral Commissioner to arrange for the preparation of approved lists of voters for a Division and make available these lists if the Electoral Commissioner thinks that they should be available.

 

Item 21 - Paragraph 23(c)

Item 22 - Subsection 30(4)

Item 23 - Paragraph 32(1)(a)

Item 24 - Paragraph 32(1)(b)

Item 25 - Paragraph 33(1)(a)

 

100.      Consequential to Item 20, items 21 to 25 generally add ‘or an approved list of voters’ to provisions that refer to certified lists.

 

Item 26 - Subsection 34(1)

 

101.      Subsection 34(1) requires an issuing officer at a polling place to place a mark against the name of a person on a certified list of voters who are given ballot papers.  Item 26 recasts the provision to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 27 - Subsection 34(3)

 

102.      Subsection 34(3) generally provides that when an election and a referendum is held on the same day, the obligations under subsection 34(1) to mark the certified list are met if the certified list is marked for the purposes of the election.  Item 27 makes it explicit that if the requirements of subsection 232(1) of the Electoral Act have been met then the requirements in subsection 34(1) are taken to be met.  Subsection 232(1) as amended includes the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 28 - Paragraphs 37(1)(a), (b) and (c)

Item 29 - Paragraph 37(1)(d)

 

103.      Consequential to Item 20, items 28 and 29 generally add ‘or an approved list of voters’ to provisions that refer to certified lists.

 

Item 30 - After paragraph 142A(1)(b)

Item 31 - Subsections 142A(3) and (4)

 

104.      Item 30 defines an approved list of voters as a ‘referendum document’.  This has the effect of making the DRO responsible for the safe custody of the approved lists of voters in accordance with the directions of the Electoral Commissioner.  Approved lists of voters are exempted from the operation of subsections 393A(3) and (4) by Item 31 as they cannot be parcelled up and sealed like paper documents such as ballot papers.

 

Division 2 - Amendments with contingent commencement

 

105.      These amendments take into account the pre-poll ordinary voting amendments proposed by Schedule 1 of the Pre-poll Bill.

 

Commonwealth Electoral Act 1918

 

Item 32 - At the end of subsection 200DD(4)

 

106.      Subsection 200DD(4) provides that pre-poll ordinary voting is not available unless a copy of the certified list of voters for the Division has been delivered.  Item 32 amends this provision so that pre-poll ordinary voting is not available unless a copy of the certified list has been delivered or an approved list of voters is available.

 

Item 33 - Paragraph 200DG(1)(b)

Item 34 - Paragraph 200DG(1)(b)

 

107.      Section 200DG provides for when a person is entitled to vote by pre-poll ordinary vote.  One element of the requirements is set out at paragraph 200DG(1)(b), which requires a voter’s name to be on the certified list at the polling place before the voter may cast a pre-poll ordinary vote.  Items 33 and 34 amend this provision so that if a person’s name is on either the certified list or the approved list held at the polling place, he or she would satisfy this element of the requirements.

 

Item 35 - Paragraphs 200DG(2)(c) and (d)

Item 36 - Paragraph 200DG(2)(e)

 

108.      Paragraphs 200DG(2)(c), (d) and (e) provide that a person is not entitled to vote by pre-poll ordinary vote if a voter’s answers do not accord with information on the certified list, the voter’s address does not appear on the certified list or a mark on the certified list indicates that the person has already voted.  Items 35 and 36 generally add ‘an approved list of voters’ to these paragraphs to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 37 - Subsection 200DI(2)

 

109.      Section 200DI provides for the questions that must be put to a voter and checked against the certified list.  Item 37 inserts ‘or on an approved list of voters’ to subsection 200DI(2) to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 38 - Subsection 200DJ(3)

 

110.      Section 200DJ provides for issuing officers to give entitled voters ballot papers.  Subsection 200DJ(3) requires an issuing officer to place a mark against a person’s name on the certified list once that person has received ballot papers.  Item 38 recasts that subsection so that the issuing officer is required to mark the certified list or record electronically against an approved list of voters once the person has been given ballot papers.

 

Referendum (Machinery Provisions) Act 1984

 

Item 39 - At the end of subsection 73CD(4)

 

111.      Subsection 73CD(4) provides that pre-poll ordinary voting is not available unless a copy of the certified list of voters for the Division has been delivered.  Item 39 would amend this provision so that pre-poll ordinary voting is not available unless a copy of the certified list has been delivered or an approved list of voters is available.

 

Item 40 - Paragraph 73CG(1)(b)

Item 41 - Paragraph 73CG(1)(b)

 

112.      Section 73CG provides for when a person is entitled to vote by pre-poll ordinary vote.  One element of the requirements is set out at paragraph 73CG(1)(b), which requires a voter’s name to be on the certified list at the polling place before the voter may cast a pre-poll ordinary vote.  Items 40 and 41 would amend this provision so that if a person’s name is on either the certified list or the approved list held at the polling place, he or she would satisfy this element of the requirements.

 

Item 42 - Paragraphs 73CG(2)(c) and (d)

Item 43 - Paragraph 73CG(2)(e)

 

113.      Paragraphs 73CG(2)(c), (d) and (e) provide that a person is not entitled to vote by pre-poll ordinary vote if a voter’s answers do not accord with information on the certified list, the voter’s address does not appear on the certified list, or a mark on the certified list indicates that the person has already voted.  Items 42 and 43 generally add ‘an approved list of voters’ to these paragraphs to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 44 - Subsection 73CI(2)

 

114.      Section 73CI provides for the questions that must be put to a voter and checked against the certified list.  Item 44 inserts ‘or on an approved list of voters’ to subsection 73CI(2) to account for the possibility that a person’s name might be on an approved list of voters and that it is recorded electronically that a person has been given ballot papers.

 

Item 45 - Subsection 73CJ(3)

 

115.      Section 73CJ provides for issuing officers to give ballot papers to entitled voters.  Subsection 73CJ(3) requires an issuing officer to place a mark against a person’s name on the certified list once that person has received ballot papers.  Item 45 recasts that subsection so that the issuing officer is required to mark the certified list or record electronically against an approved list of voters once the voter has been given ballot papers.

 

Part 3 - Ballot papers

 

116.      The Electoral Act currently provides two options for the printing of ‘official marks’ on ballot papers for authentication purposes.  One option for the printing of an official mark in paragraph 209A (b) of the Electoral Act requires the ballot paper to be printed at a professional printer as it contains the technical requirement for ‘overprinting’.

 

117.      While the majority of ballot papers are printed by a professional printer, particular difficulties arise in relation to votes that are cast before polling day (pre-poll votes) or votes that are cast on polling day by people outside the Division in which they are enrolled but still within their own state or territory (absent votes).  It is possible that a pre-poll voting office or polling place might exhaust the supply of ballot papers allocated for the particular Division in which people wishing to cast pre-poll or absent votes are enrolled.  This is especially the case when elections are held during school holiday periods or long weekends as more electors tend to be outside their home Division.

 

118.      To facilitate pre-poll and absent voting, the amendments repeal the technical requirement for ‘overprinting’ and substitute the option for the ballot paper to contain a feature approved by the Electoral Commissioner.  By omitting the technical requirement for ‘overprinting’, pre-poll voting centres and polling places will have more flexibility to print any ballot papers that are required.

 

119.      When conducting the scrutiny of ballot papers after polling day, a ballot paper may be rejected as informal if it is not initialled by the person who issued the vote or if it does not contain an official mark.  An exception to this is in cases where the DRO believes it is an authentic ballot paper on which a voter has marked a vote.  The proposed amendments require the DRO to mark such ballot papers with the words ‘I am satisfied that this ballot paper is an authentic ballot paper on which a voter has marked a vote’.

 

120.      Consistent amendments are made to the Referendum Act.

 

121.      These amendments give effect to recommendations 37 and 38 of the JSCEM Report.

 

Commonwealth Electoral Act 1918

 

Item 46 - Paragraph 209A(b)

 

122.      Item 46 repeals paragraph 209A(b) to remove the technical requirement for ‘overprinting’.  The substituted paragraph provides that an official mark for authentication of ballot papers will be a feature approved by the Electoral Commissioner.  This amendment provides the flexibility to print ballot papers locally when required.

 

Item 47 - At the end of subsection 268(2)

 

123.      To remove any uncertainty in relation to whether a DRO believes that a ballot paper is authentic, Item 47 requires the DRO to endorse the ballot paper with the words ‘I am satisfied that this ballot paper is an authentic ballot paper on which a voter has marked a vote’.

 

Referendum (Machinery Provisions) Act 1984

 

Item 48 - Paragraph 25A(b)

 

124.      Item 48 will repeal paragraph 25A(b) to remove the technical requirement for ‘overprinting’.  The substituted paragraph provides that an official mark for authentication of ballot papers will be a feature approved by the Electoral Commissioner.  This amendment provides the flexibility to print ballot papers locally when required.

 

Item 49 - At the end of subsection 93(3)

 

125.      To remove any uncertainty in relation to whether a DRO believes that a ballot paper is authentic, Item 49 requires the DRO to endorse the ballot paper with the words ‘I am satisfied that this ballot paper is an authentic ballot paper on which a voter has marked a vote’.

 

Schedule 5 - Mobile Polling

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

126.      The Electoral Act currently provides for ‘mobile polling’.  Mobile polling may currently be conducted at hospitals that are polling places, hospitals that are gazetted as ‘special hospitals’, prisons and remote divisions.  The Electoral Act does not currently authorise mobile polling more generally. 

 

127.      The amendments consolidate all forms of mobile polling currently provided for under the Electoral Act into one single form of mobile polling.  The amendments are based on current section 227 of the Electoral Act providing for mobile polling in ‘remote’ areas of Australia.  Sections 225 and 226A are consolidated into the more general section 227 of the Electoral Act. 

 

128.      In general the new provisions provide for mobile polling to be conducted on the 12 days prior to, and on, polling day.  The Electoral Commissioner is given the power to determine in writing the places at which mobile polling can be conducted.  A mobile polling team will visit the places the Electoral Commissioner has determined in writing.  The amendments provide a regime where the public is notified of the provision of mobile polling by notice on the AEC’s website and by any other means that the Electoral Commissioner deems appropriate.  If for reasonable cause the mobile polling team is unable, or the team leader considers it inappropriate to make such a visit, the team leader may substitute another visit and in that event give notice to the public on the AEC’s website or by any other means that he or she thinks fit.

 

129.      The practical process of issuing ballot papers remains unchanged.

 

130.      These amendments are based on recommendations 18, 20, 28, 29 and 30 of the JSCEM Report.  The amendments differ from the recommendations as they will provide for one form of mobile polling to provide mobile polling services where and when they are needed.

 

131.      In accordance with recommendation 45 of the JSCEM Report consistent amendments are made to the Referendum Act.

 

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

 

132.      Item 1 repeals ‘electoral visitor’ from the definition of ‘officer’ in subsection 4(1).  This amendment is necessitated by the removal of the concept of electoral visitors.  Officers conducting mobile polling are referred to as mobile polling team leaders and mobile polling team members as is currently the case in relation to mobile polling in remote divisions.

 

Item 2 - Subsection 4(1) (definition of Special hospital )

Item 3 - Subparagraph 184A(2)(b)(i)

 

133.      Item 2 repeals the definition of ‘special hospital’ in subsection 4(1) which is redundant due to the consolidation of mobile polling into one general provision.  Item 3 repeals the cross reference to the term ‘special hospital’ in subsection 184A.

 

Item 4 - Paragraph 194(2)(f)

 

134.      Item 4 repeals paragraph 194(2)(f) which is necessitated by the removal of ‘electoral visitors’ from the definition of ‘officer’.

 

Item 5 - Paragraph 194(2)(g)

 

135.      Item 5 removes the term ‘station’ from paragraph 194(2)(g) and replaces it with the term ‘place’.  This is necessary due to the consolidation of mobile polling into one general provision and the repeal of the concept of mobile polling in remote divisions.

 

Item 6 - Subsection 195A(1) (paragraph (d) of the definition of officer )

Item 7 - Subsection 195A(1)(definition of presiding officer )

Item 8 - Subsection 195A(3)(table item 4)

Item 9 - Subsection 195A(5)

Item 10 - Paragraph 195A(5)(b)

Item 11 - Paragraph 195A(5)(c)

 

136.      Items 6 to 11 repeal cross references and references to the term ‘electoral visitor’ that is redundant due to the consolidation of mobile polling into one general provision. 

 

Item 12 - Paragraph 202A(2)(k)

 

137.      Item 12 repeals paragraph 202A(2)(k) which is redundant due to the removal of the concept of ‘electoral visitor’ from the Electoral Act by Item 1 above.

 

Item 13 - Section 223

 

138.      Item 13 amends section 223 to remove the cross reference to section 225 which is repealed by item 14.

 

139.      Item 13 also alters the heading to section 224 by omitting ‘Mobile booths - hospitals’ and substituting ‘Hospitals’.

 

Item 14 - Section 225

 

140.      Item 14 repeals section 225 relating to mobile polling at hospitals.  Section 225 is redundant as this form of mobile polling is consolidated into one general provision of mobile polling provided for in amended section 227.

 

Item 15 - Subsection 226(1)

Item 16 - Subsection 226(1)

Item 17 - Subsection 226(2)

Item 18 - Subsection 226(2A)

Item 19 - Subsection 226(2A)

Item 20 - Subsection 226(3)

Item 21 - Subsection 226(3)

Item 22 - Subsection 226(4)

Item 23 - Subsection 226(4)

 

141.      Items 15 to 23 repeal cross references to section 225 and references to ‘electoral visitors’ which are now redundant.

 

Item 24 - Subsection 226(5A)

 

142.      Item 24 repeals subsection 226(5A) which is redundant due to the consolidation of ‘special hospital’ mobile polling into the general mobile polling provision.

 

Item 25 - Subsections 226(6)

 

143.      Item 25 repeals the cross reference to section 225 which is redundant due to the repeal of section 225 by Item 14 above.

 

Item 26 - Subsections 226(7A) to (7C)

 

144.      Item 26 repeals subsections 226(7A), (7B) and (7C) which are redundant due to the repeal of section 225 by Item 14 above.

 

Item 27 - Subsection 226(8)

 

145.      Item 27 repeals the cross reference to section 225 which is redundant due to the repeal of section 225 by Item 14 above.

 

Item 28 - Subsection 226(8)

 

146.      Item 28 repeals the cross reference to subsections 226(7A) and (7C) which are redundant due to the repeal of these subsections by Item 26 above.

 

Item 29 - Section 226A

 

147.      Item 29 repeals section 226A relating to mobile polling in prisons which is redundant as it is consolidated into one general provision of mobile polling provided for in amended section 227.

 

Item 30 - Subsection 227(1) (definition of station )

 

148.      Item 30 repeals the definition of ‘station’ which is redundant due to the removal of the restriction of mobile polling to remote divisions.

 

149.      Item 30 also alters the heading to section 227 by omitting ‘Mobile booths - Remote Divisions’ and substituting ‘Mobile booths’.

 

Item 31 - Subsection 227(2)

 

150.      Item 31 amends subsection 227(2) to provide that the Electoral Commissioner (rather than the Electoral Commission) may appoint people to be members of mobile polling teams and a person to be the mobile polling team leader.

 

Item 32 - Subsection 227(3)

 

151.      Item 32 amends subsection 227(3) to remove the restriction that the provision of mobile polling in section 227 can only apply to ‘remote Divisions’.  This provides for one general form of mobile polling.

 

Item 33 - Subsection 227(4)

Item 34 - Paragraph 227(4)(a)

Item 35 - Paragraph 227(4)(a)

 

152.      Items 33 to 35 amend subsection 227(4) to provide the Electoral Commissioner (rather than the Electoral Commission) with the power to determine in writing the places at which mobile polling can be conducted.  The amendments provide a regime where the public is notified of the provision of mobile polling by notice on the AEC’s website and by any other means that the Electoral Commissioner deems appropriate. 

 

Item 36 - After subsection 227(4)

 

153.      Item 36 inserts new subsection 227(4A).  New subsection 227(4A) requires the Electoral Commissioner to consult the head of the prison authority for a state or territory prior to determining that voting will take place at a particular prison.

 

Item 37 - Subsection 227(6)

Item 38 - Paragraph 227(6)(a)

Item 39 - At the end of paragraph 227(6)(b)

 

154.      Items 37 to 39 amend subsection 227(6) to provide that, subject to new subsection 227(6A), a mobile polling team will visit the places the Electoral Commissioner has determined in writing.  If for reasonable cause the mobile polling team is unable or the team leader considers it inappropriate to make such a visit, the team leader may substitute another visit and in that event give notice to the public on the AEC’s website or by any other means that he or she thinks fit.

 

Item 40 - After subsection 227(6)

 

155.      Item 40 inserts new subsection 227(6A).  New subsection 227(6A) prohibits a mobile polling team making a visit to a prison if the officer in charge of the prison forbids the visit for security reasons.

 

Item 41 - Subsection 227(8)

Item 42 - Paragraph 227(8)(d)

 

156.      Items 41 and 42 amend subsection 227(8) to repeal cross references to section 225 and references to ‘station’ which are now redundant.

 

Item 43 - Subsection 227(10)

 

157.      The flexible mobile polling regime provided for in this Schedule 5 has required a change to the process at the completion of polling.  The mobile polling team leader will still be required to publicly close, fasten, seal and take charge of each ballot box.  Item 43 amends subsection 227(10) to require the mobile polling team leader to forward the ballot boxes for scrutiny in accordance with the instructions of the Australian Electoral Officer for the State or Territory in which that last visit occurred rather than ‘the Divisional Returning Officer’.  This is due to the fact that the mobile polling team may conduct mobile polling visits across divisional and state boundaries.

 

Item 44 - Subsection 227(11)

 

158.      Item 44 amends subsection 227(11) to refer to ‘a Divisional Returning Officer’ rather than ‘the Divisional Returning Officer’.  This amendment is due to the fact that the mobile polling team may conduct mobile polling visits across divisional and state boundaries.  The substantive nature of subsection 227(11) remains unchanged.

 

Item 45 - At the end of section 227

 

159.      Item 43 amends section 227 to insert new subsection 227(12) which clarifies that a determination under paragraph 227(4)(a) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 (Legislative Instruments Act).

 

Item 46 - Subsection 228(2)

 

160.      Item 46 amends subsection 228(2) to remove the redundant cross references and insert a reference to subsection 227(10).  This is due to subsection 227(10) being the only subsection under which Assistant Returning Officers are forwarded ballot boxes under the new consolidated mobile polling provision.

 

Item 47 - Subsection 234(1A)

Item 48 - Subparagraph 273(2)(a)(i)

Item 49 - Paragraph 273(2)(ab)

Item 50 - Subparagraph 274(2)(a)(i)

Item 51 - Paragraph 274(2)(ab)

 

161.      Items 47 to 51 amend sections 234, 273 and 274 to repeal cross references to section 225 and references to ‘electoral visitor’ which are now redundant.

 

Item 52 - Paragraph 4 of Schedule 2

 

162.      Item 52 amends paragraph 4 of Schedule 2 to the Electoral Act to refer to section 227 rather than section 225.  This is necessary due to the fact that section 227 is the section that provides for mobile polling in the consolidated model of mobile polling.

 

Item 53 - Paragraph 6 of Schedule 2

 

163.      Item 53 repeals a reference to ‘special hospitals’ in paragraph 6 of Schedule 2 to the Electoral Act which is now redundant.

 

Item 54 - Paragraph 7 of Schedule 2

 

164.      Item 54 repeals paragraph 7 of Schedule 2 to the Electoral Act which is now redundant.

 

Referendum (Machinery Provisions) Act 1984

 

Item 55 - Subsection 3(1) (definition of electoral visitor )

Item 56 - Subsection 3(1) (definition of officer )

 

165.      Items 55 and 56 repeal the definition of ‘electoral visitor’.  This amendment is necessitated by the removal of the concept of electoral visitors.  Officers conducting mobile polling are referred to as mobile polling team leaders and mobile polling team members as currently provided in relation to mobile polling in remote divisions.

 

Item 57 - Subsection 3(1) (definition of special hospital )

 

166.      Item 57 repeals the definition of ‘special hospital’ which is redundant due to the consolidation of mobile polling into one general provision.

 

Item 58 - Paragraph 16A(2)(k)

 

167.      Item 58 repeals the redundant reference to the term ‘electoral visitor’.

 

Item 59 - Subsection 36(1A)

Item 60 - Subsection 46A(2)

Item 61 - Section 47

 

168.      Items 59 to 61 repeal cross references to subsections 49 and 49A which are redundant due to the repeal of these sections by Item 62 below.

 

169.      Item 61 alters the heading to section 48 by omitting ‘Mobile booths - hospitals’ and substituting ‘Hospitals’.

 

Item 62 - Sections 49 and 49A

 

170.      Item 62 repeals sections 49 and 49A relating to mobile polling at hospitals and prisons which are redundant as these forms of mobile polling are consolidated into one general provision of mobile polling provided for in amended section 51.

 

Item 63 - Subsection 50(1)

Item 64 - Subsection 50(1)

Item 65 - Subsection 50(2)

Item 66 - Subsection 50(2A)

Item 67 - Subsection 50(2A)

Item 68 - Subsection 50(3)

Item 69 - Subsection 50(3)

Item 70 - Subsection 50(4)

Item 71 - Paragraph 50(4)(b)

Item 72 - Subsection 50(5)

 

171.      Items 63 to 72 repeal the following:

(a)     cross references to section 49 which is repealed by Item 62 above;

(b)    references to the term ‘electoral visitor’; and

(c)     references to ‘special hospitals’,

which are redundant due to the consolidation of mobile polling into one general mobile polling provision by amended section 51.

 

Item 73 - Subsections 50(6A) to (6C)

 

172.      Item 73 repeals subsections 50(6A), (6B) and (6C) which are redundant due to the repeal of section 49 by Item 62.

 

Item 74 - Subsection 50(7)

 

173.      Item 74 amends subsection 50(7) to repeal a cross reference to section 49 which is repealed by Item 62 above.

 

Item 75 - Subsection 50(7)

 

174.      Item 75 amends subsection 50(7) to repeal a cross reference to subsection 50(6A) and (6C) which are repealed by Item 73 above.

 

Item 76 - Subsection 51(1)(definition of station )

 

175.      Item 76 repeals the definition of ‘station’ which is redundant due to the removal of the restriction of mobile polling to remote divisions.

 

176.      Item 76 also alters the heading to section 51 by omitting ‘Mobile booths - Remote Divisions’ and substituting ‘Mobile booths’.

 

Item 77 - Subsection 51(2)

 

177.      Item 77 amends subsection 51(2) to provide that the Electoral Commissioner (rather than the Electoral Commission) may appoint persons to be members of mobile polling teams and a person to be the mobile polling team leader.

 

Item 78 - Subsection 51(3)

 

178.      Item 78 amends subsection 51(3) to remove the restriction that the provisions of mobile polling in section 51 can only apply to ‘remote Divisions’ as defined in the Electoral Act.  This provides for one general provision of mobile polling.

 

Item 79 - Subsection 51(4)

Item 80 - Paragraph 51(4)(a)

Item 81 - Paragraph 51(4)(b)

 

179.      Items 79 to 81 amend subsection 51(4) to provide the Electoral Commissioner (rather than the Electoral Commission) with the power to determine in writing the places at which mobile polling can be conducted.  The proposed amendments provide a regime where the public is notified of the provision of mobile polling by notice on the AEC’s website and by any other means that the Electoral Commissioner deems appropriate. 

 

Item 82 - After subsection 51(4)

 

180.      Item 82 inserts new subsection 51(4A).  New subsection 51(4A) requires the Electoral Commissioner to consult the head of the prison authority for a state or territory prior to determining that voting will take place at a particular prison.

 

Item 83 - Subsection 51(6)

Item 84 - Paragraph 51(6)(a)

Item 85 - Paragraph 51(6)(b)

 

181.      Items 83 to 85 amend subsection 51(6) to provide that, subject to new subsection 51(6A), a mobile polling team will visit the places the Electoral Commissioner has determined in writing.  If for reasonable cause the team is unable, or the team leader considers it inappropriate to make such a visit, the leader may substitute another visit and in the event give notice to the public on the AEC’s website and by any other means that he or she thinks fit.  The mobile polling team leader must also inform the relevant Divisional Returning Officer in which the visit is to occur.

 

Item 86 - After subsection 51(6)

 

182.      Item 86 inserts new subsection 51(6A).  New subsection 51(6A) prohibits a mobile polling team making a visit to a prison if the officer in charge of the prison forbids the visit for security reasons.

 

Item 87 - Subsection 51(8)

Item 88 - Paragraph 51(8)(d)

 

183.      Items 87 and 88 amend subsection 51(8) to repeal cross references to section 49 and references to ‘station’ which are now redundant.

 

Item 89 - Subsection 51(10)

 

184.      The flexible mobile polling regime provided for in this Schedule 5 has required a change to the process at the completion of polling.  The mobile polling team leader will still be required to publicly close, fasten, seal and take charge of each ballot box.  Item 89 amends subsection 51(10) to require the mobile polling team leader to forward the ballot boxes for scrutiny in accordance with the instructions of the Australian Electoral Officer for the State or Territory in which that last visit occurred rather than ‘the Divisional Returning Officer’.  This is due to the fact that the mobile polling team may conduct mobile polling visits across divisional and state boundaries.

 

Item 90 - At the end of section 51

 

185.      Item 90 amends section 51 to insert new subsection 51(12) which clarifies that a determination under paragraph 51(4)(a) is not a legislative instrument within the meaning of section 5 of the Legislative Instruments Act.

 

Item 91 - Section 52

 

186.      Item 91 amends section 52 to repeal the cross reference to section 225 of the Electoral Act which is now redundant.

 

Item 92 - Section 52

 

187.      Item 92 amends section 52 to repeal the cross reference to section 49 of the Referendum Act which is now redundant.

 

Item 93 - Paragraph 65(2)(e)

 

188.      Item 93 amends section 65 to repeal the reference to ‘electoral visitor’ which is now redundant.

 

Item 94 - Paragraph 65(2)(f)

 

189.      Item 94 amends section 65 to repeal paragraph 65(2)(f) which is now redundant.

 

Item 95 - Paragraph 65(2)(g)

 

190.      Item 95 amends section 65 to repeal the reference to ‘station’ which is now redundant.

 

Item 96 - Subsection 67(1) (paragraph (d) of the definition of officer )

Item 97 - Subsection 67(1) (definition of presiding officer )

Item 98 - Subsection 67(3) (table item 4)

Item 99 - Subsection 67(5)

 

191.      Items 96 to 99 amend section 67 to repeal the term ‘electoral visitor’ which is now redundant.

 

Item 100 - Paragraph 67(5)(b)

 

192.      Item 100 amends subsection 67(5) to remove the redundant cross references and insert a reference to subsection 51(10).  This is due to subsection 51(10) being the only subsection under which Assistant Returning Officers are forwarded ballot boxes under the new consolidated mobile polling provision.

 

Item 101 - Paragraph 67(5)(c)

Item 102 - Subparagraph 90(1)(e)(i)

Item 103 - Subparagraph 90(1)(e)(iii)

 

193.      Items 101 to 103 amend sections 67 and 90 to repeal the term ‘electoral visitor’ which is now redundant.

 

Item 104 - Paragraph 4 of Schedule 3

 

194.      Item 104 amends paragraph 4 of Schedule 3 to the Referendum Act to refer to section 51 rather than section 49.  This is necessary due to the fact that section 51 now provides for mobile polling in the consolidated model of mobile polling.

 

Item 105 - Paragraph 6 of Schedule 3

 

195.      Item 105 amends paragraph 6 of Schedule 3 to the Referendum Act to remove a reference to ‘special hospitals’ which is now redundant.

 

Item 106 - Paragraph 7 of Schedule 3

 

196.      Item 106 repeals paragraph 7 of Schedule 3 to the Referendum Act which is now redundant.

 

Part 2 - Application and transitional provisions

 

Item 107 - Application of amendments

 

197.      Item 107 makes it clear that the provisions relating to mobile polling only apply prospectively to all elections and referenda the writs for which are issued on or after the commencement of the amendments.

 

Item 108 - Transitional

 

198.      Item 108 clarifies that despite the amendments made by items 1 and 56 of this Schedule, the definition of ‘officer’ as in force, immediately before the commencement of that item continues to apply on or after the commencement of those items for the purposes of the offence provisions in section 323 of the Electoral Act and section 116 of the Referendum Act.

 

Schedule 6 - Postal voting

 

Part 1 - Main amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 184(1)

 

199.      The Electoral Act provides for postal voting. An elector may only apply for a postal vote if the elector meets one of the grounds set out in Schedule 2 to the Electoral Act.  Currently, an elector must make a declaration that he or she is entitled to apply for a postal vote and sign the application in the presence of a witness.

 

200.      Item 1 amends section 184, which deals with the application for a postal vote.  Item 1 repeals subsection 184(1) and replaces it with the requirement that an elector making an application for a postal vote must make the application:

(a)     in writing;

(b)    in the approved form; and

(c)     containing a declaration that he or she is entitled to apply for a postal vote.

 

201.      The removal of the requirement for a postal vote application to be signed by a witness is intended to enable postal vote applications to be lodged online or electronically and reduce possible delays in delivery of the postal vote applications.

 

Item 2 - Subsections 184(2) and (3)

 

202.      Item 2 amends subsections 184(2) and (3) to require postal vote applications to be made ‘directly’ to the DRO or the Assistant Returning Officer as the case requires.  The intention of these amendments is to avoid delays in the issue and return of postal vote applications to provide that a postal vote application must be made to and returned directly to the AEC.  This is intended to ensure that the completed application is not returned via a third party, including a political party.

 

Item 3 - Subsections 184(3A)

 

203.      Item 3 repeals subsection 184(3A), which deals with properly witnessing a postal vote application outside Australia.  The repeal of subsection 184(3A) is necessary due to the removal of the requirement for a postal vote application to be signed in the presence of a witness.

 

Item 4 - Section 187

 

204.      The requirement for a postal vote application to be signed in the presence of a witness is repealed by Item 1 above.  Item 4 repeals section 187 that provides for the duties of a witness, in witnessing the signature on a postal vote application, which is no longer necessary. 

 

Item 5 - Subsection 188(1)

Item 6 - Subsection 188(1) (note)

 

205.      Items 5 and 6 amend section 188, which deals with issue of postal vote certificates and ballot papers.  Item 5 removes the requirement for a postal vote application to be properly witnessed before a postal vote certificate and ballot papers will be issued to an elector.  Item 6 removes the note at the end of subsection 188(1).

 

206.      Item 1 and items 3 to 6 implement recommendation 6 of the JSCEM Report.

 

Item 7 - After paragraph 194(1)(d)

 

207.      Item 7 amends subsection 194(1), which prescribes the requirements for an elector completing a postal vote certificate envelope in which ballot papers are enclosed.  This amendment introduces a new requirement for both the elector and the witness to make a written declaration that the requirements for completing the postal vote certificate and marking the ballot paper were completed before the close of the poll.  The amendments also provide for the date of the witness signature on the postal vote to be the determining date for completion of the postal vote, rather than the postmark on the certificate.  For a person to be an authorised witness to a postal vote the person must be an elector whose name appears on a Roll.

 

Item 8 - Paragraph 194(1A)(a)

 

208.      Item 8 amends subsection 194(1A), which prescribes the requirements for an elector completing a postal vote outside Australia who cannot meet the requirements for a postal vote in subsection 194(1).  The elector can either get an ‘authorised witness’, as defined in subsection 193(2), or the postal vote of the elector must be accompanied by a signed and dated statement by the elector setting out why the elector was unable to comply with those requirements.  Item 8 requires this statement to be signed and dated rather than simply signed, as was previously the case.

 

Item 9 - Paragraphs 3 and 3A of Schedule 3

 

209.      For a postal vote to be included in the count it must conform to the requirements of preliminary scrutiny set out in Schedule 3 to the Electoral Act.  Item 9 repeals current paragraphs 3 and 3A of Schedule 3 to the Electoral Act and substitutes new paragraph 3.  The amendments provide that where the DRO has reason to doubt that the signature of the person on the returned postal vote is not the signature of the elector who applied for the postal vote, the DRO must check the signature on the returned postal vote against the signature on the most recent record of the elector’s signature available to the DRO.  In practice this record is likely to be the elector’s application for enrolment.

 

Item 10 - Paragraphs 7 and 7A of Schedule 3

 

210.      Schedule 3 sets out the rules for the conduct of preliminary scrutiny.  Item 10 amends Schedule 3 to repeal the current paragraphs 7 and 7A. 

 

211.      For postal votes completed within Australia, the amendments prescribe a postal vote must be taken not to have been recorded prior to the close of the poll if the authorised witness dates the postal vote certificate on a date after polling day

 

212.      For postal votes completed outside Australia, the amendments provide that where a signed and dated statement is required to accompany a postal vote and the date on the statement is a date after polling day, then the postal vote must be taken not to have been recorded prior to the close of the poll.

 

213.      A postal vote that is taken not to have been recorded prior to the close of the poll will not be included in the count , due to the operation of subparagraph 6(e) and paragraph 9 of Schedule 3 to the Electoral Act.  The requirement for the returned postal vote to reach the DRO within 13 days is unchanged.

 

214.      Items 9 and 10 implement recommendation 5 of the JSCEM Report.

 

Referendum (Machinery Provisions) Act 1984

 

Item 11 - Subsection 55(1)

 

215.      The Referendum Act currently provides for postal voting. An elector may apply for a postal vote if the elector meets one of the grounds set out in Schedule 3 to the Referendum Act.  Currently, an elector must make a declaration that he or she is entitled to a postal vote and sign the application in the presence of a witness.

 

216.      Item 11 amends section 55 that deals with the application for a postal vote.  Item 11 repeals subsection 55(1) and substitutes the requirement that an elector making an application for a postal vote must make the application:

(a)     in writing;

(b)    in the approved form; and

(c)     with a declaration that he or she is entitled to apply for a postal vote.

 

217.      The removal of the requirement for a postal vote application to be signed by a witness is intended to enable postal vote applications to be lodged online or electronically and reduce delays in delivery of the postal vote applications.

 

Item 12 - Subsections 55(2) and (3)

 

218.      Item 12 amends subsections 55(2) and (3) to require postal vote applications to be made ‘directly’ to the DRO or the Assistant Returning Officer as the case requires.  These amendments require postal vote applications to be made directly to these officers.  The intention of these amendments is to avoid delays in the issue and return of postal vote applications to provide that a postal vote application must be made to and returned directly to the AEC.  This is intended to ensure that the application is not returned via a third party, including a political party.

 

Item 13 - Subsection 55(3A)

 

219.      Item 13 repeals subsection 55(3A), which deals with properly witnessing an application outside Australia.  The repeal of subsection 55(3A) is necessary due to the removal of the requirement for a postal vote application to be signed in the presence of a witness.

 

Item 14 - Section 60

 

220.      The requirement for a postal vote application to be signed in the presence of a witness is repealed by Item 11 above.  Item 14 repeals section 60 which provides for the duties of a witness, in witnessing the signature on a postal vote application, which is no longer necessary. 

 

Item 15 - Subsection 61(1)

Item 16 - Subsection 61(1) (note)

 

221.      Items 15 and 16 amend section 61, which deals with issue of postal vote certificates and ballot papers.  Item 15 removes the requirement for a postal vote application to be properly witnessed before a postal vote certificate and ballot papers will be issued to an elector.  Item 16 removes the note at the end of subsection 61(1).

 

222.      Item 11 and items 13 to 16 implement recommendations 6 and 45 of the JSCEM Report.

 

Item 17 - After paragraph 65(1)(d)

 

223.      Item 17 amends subsection 65(1), which prescribes the requirements for an elector completing a postal vote.  This amendment introduces a new requirement for both the elector and the witness to make a written and signed declaration that the requirements for completing the ballot paper were completed before the close of the poll.  The amendments also provide for the date of the witness signature on the postal vote to be the determining date for completion of the postal vote, rather than the postmark on the certificate.  For a person to be an authorised witness to a postal vote the person must be an elector whose name appears on a Roll.

 

Item 18 - Paragraph 65(1A)(a)

 

224.      Item 18 amends subsection 65(1A), which prescribes the requirements for an elector completing a postal vote outside Australia who cannot meet the requirements for a postal vote in subsection 65(1).  The elector can either get an ‘authorised witness’ or the postal vote of the elector must be accompanied by a signed and dated statement by the elector setting out why the elector was unable to comply with those requirements.  Item 18 requires this statement to be signed and dated rather than simply signed, as was previously the case.

 

Item 19 - Paragraphs 3 and 3A of Schedule 4

 

225.      For a postal vote to be included in the count it must conform to the requirements of preliminary scrutiny set out in Schedule 4 to the Referendum Act.  Item 19 repeals current paragraphs 3 and 3A of Schedule 4 to the Referendum Act and substitutes new paragraph 3.  The amendments provide that where the DRO has reason to doubt that the signature of the person on the returned postal vote is not the signature of the elector who applied for the postal vote.  The DRO must check the signature on the returned postal vote against the signature on the most recent record of the elector’s signature available to the DRO.  In practice this record is likely to be the elector’s application for enrolment.

 

Item 20 - Paragraphs 7 and 7A of Schedule 4

 

226.      Schedule 4 to the Referendum Act provides the rules for the conduct of preliminary scrutiny.  Item 20 amends Schedule 4 to repeal the current paragraphs 7 and 7A. 

 

227.      For postal votes completed within Australia, the amendments prescribe a postal vote must be taken not to have been recorded prior to the close of the poll if the authorised witness dates the postal vote certificate on a date after polling day.

 

228.      For postal votes completed outside Australia, the amendments provide that where a signed and dated statement is required to accompany a postal vote and the date on the statement is a date after polling day, then the postal vote must be taken not to have been recorded prior to the close of the poll.

 

229.      A postal vote that is taken not to have been recorded prior to the close of the poll will not be included in the count, due to the operation of subparagraph 6(e) and paragraph 9 of Schedule 4 to the Referendum Act.  The requirement for the returned postal vote to reach the DRO within 13 days is unchanged.

 

230.      Items 19 and 20 implement recommendations 5 and 45 of the JSCEM Report.

 

Item 21 - Application of amendments

 

231.      Part 1 of Schedule 6 commences on a single day fixed by Proclamation. The provisions will commence six months after Royal Assent if they have not been proclaimed earlier.  Item 21 clarifies that the amendments provided by Part 1 apply prospectively to elections and referenda the writs for which are issued on or after the commencement of the amendments.

 

Item 22 - Savings provision for approved forms

 

232.      Item 22 provides that the approved form for the purposes of postal vote applications, immediately before the commencement of Part 1 of Schedule 6 continues to be an approved form until another form becomes an approved form for postal vote applications.

 

Part 2 - Other amendments

 

Commonwealth Electoral Act 1918

 

Item 23 - Subsection 184AA(1)

 

233.      Currently the Electoral Act provides that an application form for a postal vote may be physically attached to or incorporated into other written material issued by any person or organisation .  It is currently common practice for political parties and candidates to undertake large-scale reproduction and distribution of their own versions of the official AEC postal vote applications.

 

234.      Item 23 prohibits other written material being physically attached to or incorporated into a postal vote application.  The material may however be included in an envelope along with the postal vote application.

 

Referendum (Machinery Provisions) Act 1984

 

Item 24 - Subsection 56(1)

 

235.      Currently, a postal vote application form may be physically attached to or incorporated into other written material issued by any person or organisation.  It is currently common practice for political parties and candidates to undertake large-scale reproduction and distribution of their own versions of the official AEC postal vote applications.

 

236.      Item 24 prohibits other written material being physically attached to or incorporated into a postal vote application.  The material may be included in an envelope along with the postal vote application.

 

Schedule 7 - Other amendments relating to rolls and enrolment

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - At the end of section 90A

 

237.      Item 1 amends section 90A which requires a version of the electoral Roll, which includes an elector’s name and address, to be publicly available for viewing at the office of each DRO, the capital city offices of the Electoral Commission and such other places as the Electoral Commissioner determines. 

 

238.      Item 1 inserts new subsection 90A(5) that clarifies that there is no right to copy or record by electronic means the publicly available Roll.  Subsection 90A(5) does not provide for an offence.

 

239.      The amendment in Item 1 is based on the unanimously supported recommendation 53 of the JSCEM Report.

 

Item 2 - After subsection 90B(8A)

 

240.      A General Postal Voter (GPV) is automatically sent a postal vote as soon as ballot papers are printed for an election.  One of the criteria upon which a person can register as a GPV is that the person is serving with the defence force overseas.  To protect this information subsection 90B(8A) prohibits the postal address of such persons being disclosed.

 

241.      This prevents the AEC from advising the Australian Capital Territory, the Northern Territory and Tasmanian Electoral Commissions that electors have registered as GPVs.  This is significant for these jurisdictions as their respective electoral legislation generally prescribes that being a general postal voter for federal purposes entitles the elector to be a general postal voter for state and territory purposes.  This means that affected electors are not sent ballot papers for state and territory elections and might not cast a vote.

 

242.      Item 2 amends section 90B to remove the prohibition on the AEC providing the postal address of GPVs.

 

243.      This amendment is intended to allow the AEC to send to state and territory electoral commissions the postal address of GPVs.  These amendments are not intended to allow the AEC to provide the postal address of GPVs to any persons or organisations other than an electoral authority of a state or territory.

 

Item 3 - At the end of subsection 91A(2B)

 

244.      The AEC maintains the electoral Roll for federal elections and also state and territory elections under ‘joint roll arrangements’ provided for in section 84 of the Electoral Act.  In general terms, these arrangements work by the AEC collecting information from every eligible person to create an electoral Roll.  The Roll information is then forwarded to the relevant state or territory.  The provision of this information is permitted in accordance with Item 16 of the table in subsection 90B(1) of the Electoral Act.

 

245.      Subsection 91A(2B) currently limits the uses that can be made of the information provided by the AEC to ‘any purpose in connection with an election or referendum’ and ‘monitoring the accuracy of information contained in a Roll’.  Subsection 91A(1) prescribes a penalty if information is used for a purpose that is not permitted.

 

246.      Item 3 amends section 91A to prescribe a regulations regime under which the Roll information provided to the states and territories can be used for additional purposes.  The regime provides that Roll information can be used for any purpose prescribed by regulations.  This will allow for regulations to prescribe for Roll information to be used, for example for the purpose of compiling jury lists.

 

247.      The amendment in Item 3 implements recommendation 44 of the JSCEM Report.

 

Item 4 - Paragraph 96(1)(b)

 

248.      Section 96 currently provides for a person in Australia who has no permanent place of residence to enrol as an ‘itinerant elector’.

 

249.      Item 4 amends subsection 96(1) to provide for a ‘subcategory’ of itinerant elector that specifically caters for persons experiencing homelessness to facilitate enrolment and continued enrolment for people experiencing homelessness.

 

Item 5 - At the end of paragraph 96(7)(a)

 

250.      Item 5 makes a minor amendment to paragraph 96(7)(a) to add the word ‘or’ to the end of the paragraph, necessitated by the addition of paragraph 96(7)(aa) by Item 6 below.

 

Item 6 - After paragraph 96(7)(a)

 

251.      Item 6 inserts paragraph 96(7)(aa) which provides that where an elector has applied to be an itinerant elector because they are a ‘homeless person’ the elector is not entitled to itinerant elector enrolment if the person ceases to be a homeless person.

 

Item 7 - Subsection 96(7)

 

252.      Item 7 amends subsection 96(7) to add a cross reference to paragraph 96(7)(aa).  This amendment obliges a person who has applied to be an itinerant elector, because they are a homeless person, to give notice if they cease to be a homeless person.

 

Item 8 - After subsection 96(8)

 

253.      Item 8 amends section 96 to insert new subsections 96(8A) and (8B).  New subsection 96(8A) provides that a homeless person will not lose their itinerant elector enrolment because he or she has been living in crisis or transitional accommodation for one month or longer.

 

254.      New subsection 96(8B) provides that if a person is an itinerant elector because the person is a homeless person and the person ceases to be a homeless person he or she will no longer be entitled to enrol as an itinerant elector.  Such persons are entitled to be enrolled in the usual fashion.

 

Item 9 - Paragraph 96(9)(a)

 

255.      Item 9 repeals paragraph 96(9)(a).  This amendment is intended to ensure that an itinerant elector will not automatically be removed from the electoral roll if they do not vote or apply for a postal vote at a general election.  The ordinary objection action process in Part IX of the Electoral Act will apply to itinerant electors.

 

Item 10 - Subsection 96(10)

 

256.      Item 10 amends subsection 96(10) to include a reference to new subsection 96(8B) inserted by Item 8 above. 

 

Item 11 - Subsection 96(13)

 

257.      Item 11 amends subsection 96(13) to add a definition of ‘homeless person’.  Item 11 generally defines a homeless person to include a person living in crisis or transitional accommodation or a person who has inadequate access to safe and secure housing within the meaning of the Supported Accommodation Assistance Act 1994.   The intention of this definition is to include a person who is living in accommodation of temporary nature to meet an immediate need.

 

258.      The amendments in items 4 to 11 relating to enrolment of persons experiencing homelessness and itinerant electors is based on recommendation 19 of the JSCEM Report.

 

Part 2 - Application of amendments

 

Item 12 - Application of amendments

 

259.      Item 12 clarifies that the amendments made by items 2 and 3 in relation to information to be provided to state and territory electoral commissions only applies to information provided by the AEC on or after the commencement of those items.

 

Schedule 8 - Eligibility for early voting

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

260.      Taken together, pre- poll and postal voting is known as ‘early voting’.  An elector who wishes to cast an early vote must make a declaration that they are eligible to apply for an early vote.  An elector may apply for an early vote on any of the grounds set out in Schedule 2 to the Electoral Act.

 

261.      Once the elector has made such a declaration the elector is issued with ballot papers.

 

Item 1 - After paragraph 3 of Schedule 2

 

262.      Item 1 inserts new paragraph 3A into Schedule 2 to the Electoral Act.  New paragraph 3A provides an additional ground upon which an elector can make a declaration that they are eligible for an early vote.  The additional ground is that the elector will be absent, throughout the hours of polling on polling day, from the Division for which the elector is enrolled.

 

Item 2 - Before paragraph 8 of Schedule 2

 

263.      Item 2 inserts new paragraph 7A into Schedule 2 to the Electoral Act.  New paragraph 7A provides an additional ground upon which an elector can make a declaration that they are eligible for an early vote.  The additional ground is that the elector will be unable to attend a polling booth on polling day because of a reasonable fear for, or a reasonable apprehension about, his or her personal wellbeing or safety.

 

264.      The amendments in items 1 and 2 implement recommendations 25 and 26 of the JSCEM Report.

 

Referendum (Machinery Provisions) Act 1984

 

Item 3 - After paragraph 3 of Schedule 3

 

265.      Item 3 inserts new paragraph 3A into Schedule 3 to the Referendum Act.  New paragraph 3A provides an additional ground upon which an elector can make a declaration that they are eligible for an early vote.  The additional ground is that the elector will be absent, throughout the hours of voting on voting day, from the Division for which the elector is enrolled.  This is consistent with amendments made to the Electoral Act by Item 1 above.

 

Item 4 - Before paragraph 8 of Schedule 3

 

266.      Item 4 inserts new paragraph 7A into Schedule 3 to the Referendum Act.  New paragraph 7A provides an additional ground upon which an elector can make a declaration that they are eligible for an early vote.  Namely that the elector will be unable to attend a polling booth on voting day because of a reasonable fear for, or a reasonable apprehension about, his or her personal wellbeing or safety.

 

267.      The amendments in items 3 and 4 implement recommendations 25 and 26 of the JSCEM Report and recommendation 45 which states that amendments to the Electoral Act should, where appropriate, be incorporated into the Referendum Act to ensure consistency between the provisions applying to elections and referenda.

 

Part 2 - Application of amendments

 

Item 5 - Application of amendments

 

268.      Item 5 makes it clear that the additional grounds for an application for an early vote only applies prospectively to all elections and referenda the writs for which are issued on or after the commencement of Schedule 8.

 

Schedule 9 - Minor technical amendments

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Paragraph 17(1A)(a)

 

269.      Item 1 corrects an incorrect cross reference from subsection 91(4A) to subsection 90B(1).  The amendments require the AEC to report the particulars of each person or organisation to whom a copy of a Roll is provided under subsection 90B(1).

 

Item 2 - Paragraph 17(1A)(b)

 

270.      Item 2 repeals paragraph 17(1A)(b) and replaces it with a new paragraph which does not contain an incorrect cross reference.  The amendments require the AEC to report the particulars of each person or organisation to whom a copy of a Roll or an extract of a Roll is provided under subsection 90B(4). 

 

271.      The amendments in items 1 and 2 are based on recommendation 44 of the JSCEM Report.

 

Item 3 - Subsection 31(4)

 

272.      Item 3 omits the incorrect term ‘the Australian Capital Territory’ and substitutes the term ‘a State’.  Section 31 comes under the heading of Assistant Australian Electoral Officers for States.  However, subsection 31(4) refers incorrectly to a person acting as Australian Electoral Officer for the Australian Capital Territory which is already catered for at subsection 30(4) of the Electoral Act.

 

273.      The amendments in Item 3 implement recommendation 44 of the JSCEM Report.

 

Item 4 - Subsection 123(1) (definition of Commission )

Item 5 - Section 125

Item 6 - Subsection 126(1)

Item 7 - Paragraph 126(2A)(a) and (c)

Item 8 - Subsection 126(3)

Item 9 - Section 127

Item 10 - Subsection 129(1)

Item 11 - Section 130

Item 12 - Subsection 131(1)

Item 13 - Subsection 131(2)

Item 14 - Subsection 131(3)

Item 15 - 132(1)(a)

Item 16 - Subsections 132(2) and (4)

Item 17 - Subsection 132(5)

Item 18 - Subsection 132(6)

Item 19 - Subsection 132(7)

Item 20 - Subsection 132A(1)

Item 21 - Subsections 133(1) and (3)

Item 22 - Subsections 134(1), (1A) and (3)

Item 23 - Subsection 134(5)

Item 24 - Subsections134(6) and (7)

Item 25 - Subsection 134(8)

Item 26 - Paragraph 134A(1)(a)

Item 27 - Subsection 134A(2)

Item 28 - Subsection 134A(2A)

Item 29 - Subsection 135(1)

Item 30 - Subsection 136(1A)

Item 31 - Subsection 137(1)

Item 32 - Subsections 137(2), (4), (5), (6) and (7)

Item 33 - Sections 138 and 139

Item 34 Subsection 140(1)

Item 35 - Subsection 140(2) and (3)

Item 36 - Subsection 141(1)(definition of Commission )

Item 37 - Subsection 141(1)

Item 38 - Subsection 141(1)(definition of reviewable decision )

Item 39 - Subsection 141(2)

Item 40 - Subsection 141(4) and (5)

Item 41 - Subsections 141(7) and (8)

Item 42 - Subsection 141(9)

 

274.      The term ‘Electoral Commission’ is defined in section 4 for the purposes of the Electoral Act.  Part XI separately defines and uses the term ‘Commission’ except in section 138A where the term ‘Electoral Commission’ is used.  The distinction between ‘Commission’ and ‘Electoral Commission’ serves no purpose.  Items 4 to 42 amend the Electoral Act to provide for the consistent use of the defined term ‘Electoral Commission’ rather than using both the terms ‘Electoral Commission’ and ‘Commission’.

 

275.      The amendments in items 4 to 42 implement recommendation 44 of the JSCEM Report.

 

Item 43 - Section 230

Item 44 - Section 230

 

276.      Section 230 currently provides that a ‘female elector’ shall not be disqualified from voting because ‘her’ name has been changed by marriage.  Items 43 and 44 amend section 230 to use gender neutral language to provide that an ‘elector’ shall not be disqualified from voting because ‘his or her’ name has been changed by marriage.

 

Item 45 - Subsection 274(10)

 

277.      Item 45 repeals an incorrect cross reference to subsection 274(11).  Subsection 274(11) was repealed in 1993.

 

Item 46 - Subsection 385A(2) (definition of article )

 

278.      Item 46 repeals an incorrect cross reference to section 332.  Section 332 was repealed in 1999.

 

Referendum (Machinery Provisions) Act 1984

 

Item 47 - Subsection 32(2)

Item 48 - Subsection 32(2)

 

279.      Section 32 currently provides that a ‘female elector’ shall not be disqualified from voting because ‘she has changed her name’ by marriage.  Items 47 and 48 amend section 32 to use gender neutral language to provide that an ‘elector’ shall not be disqualified from voting because ‘he or she has changed his or her surname’ by marriage.

 

Part 2 - Application of amendments

 

Item 49 - Application of amendments

 

280.      Item 49 clarifies that the amendments made by items 1 and 2 relating to the reporting of the particulars of each person or organisation to whom a copy of a Roll is provided under subsection 90B(1) and a copy of a Roll or an extract of a Roll under subsection 90B(4) apply in relation to financial years ending on or after the commencement of Schedule 9.  This is the case whether the copy or extract of a Roll was given before, on or after commencement of Schedule 9 (the day after this Act receives the Royal Assent).