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Electoral and Referendum Amendment (Maintaining Address) Bill 2011

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2010-2011

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT (MAINTAINING ADDRESS) BILL 2011

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon Gary Gray)

 

 

 



ELECTORAL AND REFERENDUM AMENDMENT (MAINTAINING ADDRESS) BILL 2011

 

OUTLINE

The Electoral and Referendum Amendment (Maintaining Address) Bill 2011 (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 Recommendation 10 of the JSCEM Report.

 

The Bill contains provisions that will:

·            allow the Electoral Commissioner to directly update an elector’s enrolled address following the receipt and analysis of reliable and current data sources from outside the Australian Electoral Commission that indicate an elector has moved residential address;

·            require the Electoral Commissioner to inform an elector that the Electoral Commissioner is proposing to update the elector’s address on the electoral Roll;

·            require the Electoral Commissioner to inform an elector that the Electoral Commissioner has updated the elector’s enrolled address;

·            enable objection action under Part IX of the Electoral Act to be discontinued and the elector’s enrolled address updated so that the elector is not removed from the electoral Roll;

·            make a number of consequential amendments to the Electoral Act and Referendum Act;

·            standardise references to the Electoral Commissioner; and

·            provide for the Electoral Commissioner to delegate the power to seek information.

 

The Bill will not provide the capacity to directly enrol new electors.  Persons who are not on the roll will need to enrol in accordance with the current requirements in the Electoral Act.

 

FINANCIAL IMPACT STATEMENT

The costs associated with implementation of the measures contained in this Bill will be absorbed by the Australian Electoral Commission.



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause provides for the Act to be cited as the Electoral and Referendum Amendment (Maintaining Address) Act 2011 .

 

Clause 2 - Commencement

 

2.              This clause provides that the Act will commence on the day after it receives Royal Assent.

 

Clause 3 - Schedule(s)

 

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

 

Schedule 1 - Requiring information for Rolls

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 28(4) (paragraph (a) of the definition of enrolment powers and functions

 

The Electoral and Referendum Amendment (Pre-poll Voting and Other Measures) Act 2010 (Pre-poll Voting Act) made a range of amendments to the Commonwealth Electoral Act 1918 (Electoral Act).  A number of these amendments specified the Electoral Commissioner as the person responsible for undertaking enrolment-related tasks and functions, rather than the Electoral Commission.

 

Items 2 to 4 below continue the amendments to specify the Electoral Commissioner as the person responsible for enrolment-related tasks and functions.  Item 1 is consequential to these amendments.  Item 1 amends the delegation power of the Electoral Commissioner to ensure that the Electoral Commissioner has the capacity to delegate the powers in section 92.

 

Item 2 - Subsection 92(1)

Item 3 - Subsection 92(1)

Item 4 - Subsection 92(1)

 

Items 2 and 4 substitute references to ‘Electoral Commission’ with ‘Electoral Commissioner’.  Item 3 substitutes a reference to ‘its’ with ‘the Electoral Commissioner’s’.  These amendments adopt the same approach as the Pre-poll Voting Act to make the Electoral Commissioner responsible for all the day to day enrolment activities rather than the Electoral Commission. 

 

The purpose of the amendments is to specify the Electoral Commissioner as the person responsible for issuing applications for information required in connection with the preparation, maintenance or revision of the Rolls.  The information applied for may be given to the Electoral Commissioner or any officer acting under his or her direction.

 

Item 5 - Subsections 92(2) and (3)

Item 6 - Subsection 92(3)

 

Item 5 substitute references to ‘Electoral Commission’ with ‘Electoral Commissioner’.  Item 6 substitutes a reference to ‘it’ with ‘him or her’ as a consequence to the amendments made by item 5.  Together these items make the Electoral Commissioner responsible for initiating reviews of electoral Rolls and specify that it is the Electoral Commissioner who is to receive the funds required to undertake such reviews.

 

Item 7 - Subsection 92(7)

Item 8 - Subsection 92(7)

Item 9 - Subsection 92(8)

 

These items substitute references to the ‘Electoral Commission’ or ‘the Commission’ with ‘Electoral Commissioner’.  These items specify that it is the Electoral Commissioner who may receive funds in advance of what might be payable under section 92 for conducting Roll reviews, and that it is the Minister for Finance who determines the amount and timing of any funds payable to the Electoral Commissioner.

 

Schedule 2 - Updating enrolment without claim

 

Schedule 2 of the Bill will generally provide for the Electoral Commissioner to directly update an elector’s enrolled address following receipt and analysis of reliable and current data sources from outside the Australian Electoral Commission (AEC) indicating that an elector has moved residential address.

 

The Bill will enable the AEC to deliver a more accurate electoral roll.  The Electoral Commissioner will be permitted to use accurate and timely information from reliable sources to maintain the current address of already enrolled electors.  This Bill will ensure that an elector will be notified of the Electoral Commissioner’s intention to enrol him or her at a new residential address and be given the opportunity to object to the change.

 

The Bill will not provide the capacity to directly enrol new electors.  Persons who are not on the roll will need to enrol in accordance with the current requirements in the Electoral Act.

 

Commonwealth Electoral Act 1918

 

Item 1 - Section 87

 

Item 1 is consequential to item 3 inserting new section 103A.  Item 1 ensures that if a new Roll is prepared under section 87 of the Electoral Act, action taken under new section 103A is taken into account when preparing the new Roll.

 

Item 2 - At the end of section 101

 

Section 101 provides for compulsory enrolment and compulsory transfer of enrolment.  In conjunction with section 99, section 101 provides that once a person eligible to enrol has lived at an address for one month, he or she has 21 days to enrol.  Similarly, an elector who moves residential address has 21 days after he or she has lived at the new address for one month in which to advise the Australian Electoral Commission of the changed residential address.  A failure to submit a claim for enrolment or transfer of enrolment is an offence with a maximum penalty of 1 penalty unit (currently one penalty unit is $110).

 

Item 2 inserts a new subsection 101(8) and is consequential to item 3 inserting new section 103A.  Item 2 ensures that legal proceedings cannot be commenced against a person obliged to submit a transfer of enrolment, and who has failed to submit a transfer of enrolment, if the Electoral Commissioner updates an elector’s name on the electoral Roll in accordance with new section 103A. 

 

Item 2 is modelled on existing subsection 101(7).  Subsection 101(7) prohibits legal proceedings being commenced against a person for failing to enrol, or an elector failing to transfer his or her enrolment, if that person or elector has submitted a claim for enrolment or transfer of enrolment.

 

Item 3 - After section 103

 

Item 3 is the key amendment of the Bill.  Item 3 inserts new subsection 103A to allow the Electoral Commissioner to directly update an elector’s enrolled address following the receipt and analysis of reliable and current data sources from outside the Australian Electoral Commission that indicate an elector has moved residential address.

 

New subsection 103A(1) provides the circumstances in which new section 103A applies.  The circumstances are that the person is already enrolled at one address and the Electoral Commissioner is satisfied that the person lives at another address based on information other than that provided by the elector.

 

If the Electoral Commissioner decides to act upon that information, new subsection 103A(2) requires the Electoral Commissioner to give the elector notice in writing that the Electoral Commissioner is satisfied that the person is living at a new address and the Electoral Commissioner proposes to update the elector’s address on the electoral Roll to the new address.  The notice will also advise the elector that he or she has 28 days to inform the Electoral Commissioner that he or she does not live at the new address.

 

New subsection 103A(3) provides that the Electoral Commissioner may update a person’s address on the electoral Roll to the new address unless satisfied that the elector does not actually live at the new address.  The Electoral Commissioner may be satisfied that the elector does not live at the new address from information given to him or her by the elector within 28 days of the date of the subsection 103A(2) notice.

 

New subsection 103A(4) provides that the Electoral Commissioner may update the person’s address on the electoral Roll before the end of 28 days if the elector confirms that he or she does live at the new address.

 

In order to produce a roll of electors for the purposes of an election, current section 155 provides that the rolls are closed seven days after the issue of the writ for an election.  Consistent with other provisions relating to the close of the rolls, new subsection 103(5) prohibits the Electoral Commissioner from taking action to update a person’s address on the electoral Roll during the period from 8 pm on the day the rolls close to the close of polling for an election.  New subsection 103A(5) is modelled on current subsection 102(4). 

 

New subsection 103A(6) requires the Electoral Commissioner to give the elector written notice if the Electoral Commissioner updates, or does not update, the elector’s address.

 

Current subparagraph 102(1)(b)(ii) requires the Electoral Commissioner to notify an elector in writing that the elector’s enrolled address has been updated following the receipt of a claim for transfer of enrolment from the elector.  New subsection 103A(7) exempts the Electoral Commissioner from the obligation under current subparagraph 102(1)(b)(ii) if the Electoral Commissioner has given the elector a notice under new subsection 103A(6).

 

New subsection 103A(8) provides the authority for the Electoral Commissioner to use information obtained by the Electoral Commissioner to give notices required under new section 103A electronically.  This is regardless of whether or not the elector has consented to the use of the electronic address.  Young Australians generally change address relatively frequently; the ability to communicate electronically is considered one important tool in maintaining an electoral Roll that is as accurate as possible.  Moreover, the AEC already collects information on enrolment forms for the purposes of contacting an elector.  The recent trend has been for more and more communication between the AEC and electors to be electronically and this trend is predicted to continue to grow into the future.

 

Item 4 - At the end of section 114

 

Part IX of the Electoral Act provides for the removal of electors from the electoral Roll in a process known as ‘objection’.  Current section 114 establishes the grounds on which objection action may be initiated either by an elector or by the Electoral Commissioner.  New subsection 114(6) provides that the Electoral Commissioner may not initiate objection action if the Electoral Commissioner has given a notice under new subsection 103A(2) that the Electoral Commissioner proposes to update the elector’s address on the electoral Roll.  This amendment provides that rather than being removed from the Roll, an elector’s enrolment will be maintained at the new address.

 

Item 5 - At the end of section 116

 

Item 5 inserts new subsections 116(5) and 116(6).  These new subsections provide the authority for the Electoral Commissioner to dismiss an objection made by an elector if the Electoral Commissioner has given the challenged elector a notice under new subsection 103A(2).  A dismissal by the Electoral Commissioner of such and objection requires the repayment of the $2 required to be lodged with an objection by an elector under current subsection 115(2).

 

The obligation for the Electoral Commissioner to dismiss an objection (made by an elector) because the Electoral Commissioner has instead issued a notice under new section 103A is not discretionary and therefore, it is appropriate that it is not reviewable.  However, a decision made under section 103A is reviewable pursuant to items 10 and 11 below.

 

The new subsections do not apply to objections made under subsection 114(1A) on the basis that the challenged elector is by reason of unsound mind, incapable of understanding the nature and significance of enrolment and voting.

 

Item 6- At the end of paragraph 118(1)(b)

 

Item 6 adds the words ‘of the objection’ to the end of the sentence ‘the end of 20 days after the giving of the notice’.  This is to clearly distinguish between notices under new subsection 103A(2) concerning the update of an elector’s address on the electoral Roll and notices under current subsection 116(1) concerning an objection to an elector’s enrolment.

 

Item 7 - After subsection 118(1)

 

Consistent with the amendments at items 4 and 5 of Schedule 2, new subsection 118(1A) is inserted into section 118 to provide that the Electoral Commissioner must not determine an objection if after giving notice of the objection, the Electoral Commissioner gives the challenged elector a notice under new subsection 103A(2).  The new subsection does not apply to objections made under subsection 114(1A) on the basis that the challenged elector is by reason of unsound mind, incapable of understanding the nature and significance of enrolment and voting.

 

Item 8 - At the end of section 118

 

Item 8 inserts new subsection 118(9) which applies in circumstances where the Electoral Commissioner has given an elector notice of an objection but then does not determine the objection because the Electoral Commissioner has given the challenged elector a notice under new subsection 103A(2).

 

New subsection 118(9) requires the Electoral Commissioner to give written notice to the person who lodged the objection that the objection will not be determined and to repay the $2 required to be lodged with an objection by an elector under current subsection 115(2).  The Electoral Commissioner must also advise the challenged elector that he or she will not determine the objection.  This notice may be given in the form of a subsection 103A(2) notice.

 

Item 9 - Subsection 120(2)

 

Item 9 is consequential to the amendments at item 7.  Item 9 amends current subsection 120(2) to provide that a decision made under section 118 to dismiss or not determine an objection may be the subject of internal review. 

 

Item 9 also inserts the correct reference to section 118, rather than the previously incorrectly referenced section 114.

 

Item 10 - After paragraph 120(3)(a)

Item 11 - After paragraph 120(3)(e)

 

Consistent with the capacity to seek review of other decisions by the Electoral Commissioner in relation to enrolment, items 10 and 11 provide that an elector may seek an internal review of a decision to update his or her address on the electoral Roll under new section 103A.

 

Item 12 - Paragraph 121(1)(g)

 

Item 12 is consequential to the amendments proposed by item 7.  Item 12 provides the capacity for a person who made an objection, which was then not determined under new subsection 118(1A), to seek a review of that decision in the Administrative Appeals Tribunal.

 

Item 13 - Paragraph 390(1)(a)

Item 14 - Paragraph 390(1)(b)

 

Section 390 provides protection against disclosure of an elector’s personal information obtained by the AEC for the purposes of enrolment or transfer of enrolment.  Except for the purposes of the Electoral Act, claims for enrolment or transfer of enrolment, or matters or things in relation to a claim for enrolment or transfer of enrolment, do not have to be produced, divulged or communicated to a court.

 

Item 13 amends paragraph 390(1)(a) to extend the protection against disclosure to copies of notices given under new section 103A or anything received in response to a notice given under subsection 103A(2).

 

Item 14 amends paragraph 390(1)(b) to extend the protection against disclosure to matters or things done under new subsections 103A(2), (3), (4) or (6).

 

Item 15 - Subsection 390A(1)

 

Section 390A also provides protection against disclosure of an elector’s personal information obtained by the AEC for the purposes of enrolment or transfer of enrolment.  Section 390A provides that search warrants issued under section 3E of the Crimes Act 1914 do not authorise the seizure of a claim for enrolment or transfer of enrolment in the possession of the AEC.

 

Item 15 amends subsection 390A(1) to extend the protection against seizure to copies of notices given under new section 103A or anything received in response to a notice given under new subsection 103A(2).

 

Referendum (Machinery Provisions) Act 1984

 

Item 16 - After paragraph 4(2)(a)

 

In order to produce a roll of electors for the purposes of a referendum, current section 9 provides that the rolls are closed seven days after the issue of the writ for a referendum.  Consistent with other provisions relating to the close of the rolls, new paragraph 4(2)(a) prohibits the Electoral Commissioner from taking action to update a person’s address on a roll during the period from 8 pm on the day the rolls close to the close of voting at a referendum.