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Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012

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2010-2011-2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT (PROTECTING ELECTOR PARTICIPATION) BILL 2012

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon Gary Gray AO MP)

 

 

 



ELECTORAL AND REFERENDUM AMENDMENT (PROTECTING ELECTOR PARTICIPATION) BILL 2012

 

OUTLINE

The Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

 

Following the inquiry into the conduct of the 2010 federal election, the Joint Standing Committee on Electoral Matters (JSCEM) tabled a report entitled The 2010 Federal Election: Report on the conduct of the election and related matters (JSCEM Report).  The Bill implements the Government response to Recommendations 1 and 24 of the JSCEM Report.

 

The Bill contains provisions that will:

·            allow the Electoral Commissioner to directly enrol a person if satisfied that the person is entitled to enrolment, has lived at an address for at least one month and the person is not enrolled;

·            require the Electoral Commissioner to inform the person that the Electoral Commissioner is proposing to enrol the person at a particular address;

·            require the Electoral Commissioner to inform the person that the Electoral Commissioner has enrolled the person at a particular address;

·            allow the Electoral Commissioner to admit certain declaration votes to the scrutiny;

·            allow the Electoral Commissioner to enrol certain persons who have cast declaration votes and who had been removed from the roll; and

·            make a number of minor and technical amendments.

 

FINANCIAL IMPACT STATEMENT

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



Statement of Compatibility with Human Rights

 

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Electoral and Referendum Amendment (Protecting Elector Participation) Bill 2012

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Bill implements the Government response to Recommendations 1 and 24 made by the Joint Standing Committee on Electoral Matters in its report entitled The 2010 Federal Election: Report on the conduct of the election and related matters .  The Bill provides for the direct enrolment of eligible Australian citizens and the reinstatement to the electoral roll and inclusion of votes of people who meet certain criteria.  The Bill does not amend the qualifications for enrolment and persons that are homeless would still be able to qualify for enrolment under the amended Electoral Act.

Human rights implications

The Bill engages Article 25 (right to take part in public affairs and elections) of the International Covenant on Civil and Political Rights (ICCPR).

In effect, Article 25 guarantees the right of all Australian citizens to take part in the conduct of public affairs, and to vote and to be elected at genuine periodic elections.  The Bill contributes to the realisation of Article 25 of the ICCPR by facilitating enrolment for eligible Australians and protecting the right to vote for people who have been removed from the electoral Roll by error or mistake of fact.

There are two initiatives in the Bill that contribute to ensuring that all Australian citizens are able to vote in federal elections and referendums.

The first initiative enables the Electoral Commissioner to place a person on the electoral Roll at a particular address if the Electoral Commissioner is satisfied that the person is entitled to enrolment, has lived at an address for at least one month and the person is not enrolled.  This process will take place following the receipt and analysis of reliable and current data from sources external to the Australian Electoral Commission that indicates a person is an eligible Australian citizen and actually lives at the particular address.

The Bill requires the Electoral Commissioner to inform a person that the Electoral Commissioner is proposing to place them on the electoral Roll at that address and provide the person with 28 days in which to object to the proposed enrolment.  This initiative assists eligible Australian citizens to meet their legislative obligation to enrol and vote in elections.

The second initiative recognises that sometimes electors do not keep their enrolled addresses up to date or that administrative errors can occur resulting in a person not being enrolled at the time of voting.  Consequently, it is common for people to present to polling places on election day believing that they are on the electoral Roll.  The existing law provides that where such people have been removed from the electoral Roll due to error or mistake of fact, his or her vote can be admitted to further scrutiny after the AEC has verified the entitlement to enrolment and voting.  However, being removed from the roll through objection action does not currently constitute an error or mistake of fact.  The Bill removes this limitation to ensure that an administrative error or mistake of fact does not hinder an otherwise eligible elector from exercising the right to vote at an election.

Conclusion

The Bill is compatible with human rights because it advances the realisation of Article 25 of the ICCPR by ensuring that all Australian citizens can vote in elections.

 

 

The Hon Gary Gray AO MP, Special Minister of State

 

 



NOTES ON CLAUSES

 

Clause 1 - Short title

 

1.              This clause provides for the Act to be cited as the Electoral and Referendum Amendment (Protecting Elector Participation) Act 2012 .

 

Clause 2 - Commencement

 

2.              This clause provides that sections 1 to 3 of this Act commence on the day it receives Royal Assent and Schedule 2 to the Act commences on the day after this Act receives Royal Assent.  Due to the interaction between this Act and the Electoral and Referendum Amendment (Maintaining Address) Act 2012 (once the Act receives Royal Assent), Schedule 1 to this Act commences on the later of the day after this Act receives Royal Assent and immediately after the commencement of Schedule 2 to the Electoral and Referendum Amendment (Maintaining Address) Act 2012 .  Schedule 1 of this Act will not commence unless Schedule 2 to the Electoral and Referendum Amendment (Maintaining Address) Act 2012 commences.

 

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 - Enrolment without claim

 

Commonwealth Electoral Act 1918

 

Item 1 - Section 87

 

Item 1 is consequential to item 4 inserting new section 103B.  Item 1 ensures that if a new Roll is prepared under section 87 of the Electoral Act, action taken under new section 103B is taken into account when preparing the new Roll.

 

Item 2 - At the end of subsection 98(1)

 

Item 2 inserts a note at the end of subsection 98(1) to emphasise that new sections 103A and 103B provide that names may also be added to the Roll outside the usual process of a person submitting a claim for enrolment or transfer of enrolment.

 

Item 3 - Subsection 101(8)

 

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 AEC 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 3 inserts a reference to new section 103B into new subsection 101(8).  Item 3 prevents legal proceedings being commenced against a person obliged to submit a claim for enrolment, and who has failed to do so, if the Electoral Commissioner enrols a person in accordance with new section 103B. 

 

Item 3 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 4 - After section 103A

 

Item 4 is the key amendment of Schedule 1 to the Bill.  Item 4 inserts new subsection 103B which will allow the Electoral Commissioner to directly enrol a person at a particular address.  It is expected that this process would follow the receipt and analysis of reliable and current data from sources external to the AEC that indicate a person is eligible to enrol and is not enrolled.

 

New subsection 103B(1) sets out when new section 103B applies.  The Electoral Commissioner is required to be satisfied that a person is entitled to enrolment, the person has lived at an address for one month, and the person is not enrolled.

 

If the Electoral Commissioner is satisfied of the grounds set out in new subsection 103B(1), new subsection 103B(2) allows the Electoral Commissioner to give the person notice in writing that the Electoral Commissioner is satisfied that the person is living at an address and the Electoral Commissioner proposes to enter the person’s name and address on the electoral roll.  The notice will also advise the person that he or she has 28 days to inform the Electoral Commissioner that he or she does not live at that address or is not entitled to enrolment.

 

New subsection 103B(3) provides that the Electoral Commissioner may enrol a person at the address unless satisfied that the person does not actually live at that address or the person is not entitled to enrolment.  The Electoral Commissioner may be satisfied that the elector does not live at that address or is not entitled to enrolment from information given to him or her by the person within 28 days of the date of the subsection 103B(2) notice.

 

New subsection 103B(4) provides that the Electoral Commissioner may enrol a person before the end of 28 days if the person confirms that he or she does live at the proposed enrolment address and is entitled to enrolment.

 

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 103B(5) prohibits the Electoral Commissioner from enrolling a person during the period from 8 pm on the day the Rolls close to the close of polling for an election.  New subsection 103B(5) is modelled on current subsection 102(4). 

 

If the Electoral Commissioner does enrol a person, or does not enrol a person, new subsection 103B(6) requires the Electoral Commissioner to give the elector written notice of the action or decision and, if applicable, the person’s full name and address as entered on the Roll.

 

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 enrolment or for transfer of enrolment from the elector.  New subsection 103B(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 103B(6).

 

New subsection 103B(8) provides the authority for the Electoral Commissioner to give notices required under new section 103B 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 and the ability to communicate electronically is considered one important tool in building 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 increasing electronic communication between the AEC and electors and this trend is predicted to continue.

 

Item 5 - Paragraph 104(9)(a)

 

Item 5 substitutes a reference in paragraph 104(9)(a) from ‘120(3)’ to ‘120(5)’.  This amendment corrects an error in the existing provision as it is under subsection 120(5), and not subsection 120(3), that reviewable decisions are set aside.  The error became apparent in the drafting of the Bill.

 

Item 6 - Subsections 120(1) to (3)

 

Item 6 recasts subsections 120(1) to (3) to make it easier to read and understand primarily by setting out the reviewable decisions in a table format.  With one small exception, the amendments do not alter the existing law.  The reviewable decisions still must be made by a delegate of the Electoral Commissioner who is not the Deputy Electoral Commissioner or an Australian Electoral Officer. 

 

Unlike existing subsection 120(3), the table does not specify the provision under which the person needs to be notified.  The effect of new subsection 120(2) is, however, that the reviewable decision will have to relate to the person mentioned in the table.  A person who receives notice of a decision that does not actually relate to them will not be able to make an application.

 

The one change to the existing law is the inclusion of decisions under section 116 in item 10 of the table.  This amendment clarifies that the decision to dismiss an objection mentioned in subsections 116(3), (4) and (5) are actually made under section 116 while notified under section 118.  The reference to notification under section 114 in existing subsection 120(2) is incorrect and is being fixed by item 9 of Schedule 2 to the Electoral and Referendum Amendment (Maintaining Address) Bill 2011 presently before the Parliament.

 

Item 7 - 120(4)

 

Item 7 omits the references to subsections 120(2) and (3) as the recasting of subsections 120(1) to (3) by item 6 means that applications for review are now only made under subsection 120(1).

 

Item 8 - Paragraph 120(4)(a)

 

Item 8 omits the definition of ‘reviewable decision’ from paragraph 120(4)(a) as new subsection 120(2) defines a ‘reviewable decision’ as a decision by the Electoral Commissioner mentioned in an item in the table in that subsection.

 

Item 9 - Paragraph 121(1)(g)

 

Item 9 amends paragraph 121(1)(g) to insert a reference to section 116.  This amendment has the effect of ensuring that if it was the Electoral Commissioner, Deputy Electoral Commissioner or an Australian Electoral Officer that made a decision under section 116, the decision could be reviewed by the Administrative Appeals Tribunal.  This amendment corrects an anomaly in the existing provisions.

 

Item 10 - Paragraph 390(1)(a)

Item 11 - Paragraph 390(1)(a)

Item 12 - 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.

 

Items 10 and 11 amend paragraph 390(1)(a) to extend the protection against disclosure to copies of notices given under new section 103B or anything received in response to a notice given under subsection 103B(2).

 

Item 12 amends paragraph 390(1)(b) to extend the protection against disclosure to matters or things done under new subsections 103B(2), (3), (4) or (6).  The item also updates the language from ‘divulge’ to ‘disclose’.

 

Item 13 - At the end of subsection 390(1)

 

As section 390 is not in the same Part of the Electoral Act as new sections 103A and 103B, a note has been included explaining what the provisions do.

 

Item 14 - Subsection 390A(1)

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.

 

Items 14 and 15 amend subsection 390A(1) to extend the protection against seizure to copies of notices given under new section 103B or anything received in response to a notice given under new subsection 103B(2).

 

Item 16 - At the end of subsection 390A(1)

 

As section 390A is not in the same Part of the Electoral Act as new sections 103A and 103B, a note has been included explaining what the provisions do.

 

Referendum (Machinery Provisions) Act 1984

 

Item 17 - After paragraph 4(2)(aa)

 

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)(ab) 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. 

 

Schedule 2 - Declaration votes and objection action

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 105(4)

 

Section 105 generally provides for the circumstances in which the electoral Rolls may be altered.  Subsection 105(4) currently provides that the Electoral Commissioner must enrol a person if a person who casts a declaration vote was entitled to be enrolled and the omission from the electoral Roll was due to an error by an officer or a mistake of fact.  Due to the operation of current sub-subparagraph 12(b)(iii) in Schedule 3 to the Electoral Act, the omission could not be due to objection action taken on the basis that the person had not lived at an address for at least one month.

 

Item 1 substitutes a new subsection 105(4) to provide the Electoral Commissioner with the discretion to enrol a person who was not enrolled when casting a declaration vote.  The discretion may be exercised where the person has made a declaration vote, the declaration envelope satisfies the requirements of Schedule 3 to the Electoral Act, the person is entitled to be enrolled for the Division, and the person was omitted from the electoral Roll for the Division due to an error by an officer or to a mistake of fact.

 

Item 2 - Paragraphs 10 and 11 of Schedule 3

 

Item 2 substitutes new paragraphs 10 and 11 in Schedule 3 to the Electoral Act.  New paragraph 10 covers the situation where there is a House of Representatives election and a Senate election at the same time.  It includes new provisions to deal with people who were not enrolled when making a declaration vote but were either living at an address in the relevant House of Representatives Division or at an address in the State or Territory in which the Division is situated when they were removed from the electoral Roll. 

 

New paragraph 11 covers the situation where only a House of Representatives election takes place.  It includes new provisions to deal with people who were not enrolled when making a declaration vote but were living at an address in the relevant House of Representatives Division when they were removed from the electoral roll.

 

Item 3 - Subparagraph 12(b) of Schedule 3

 

Item 3 repeals sub-subparagraph 12(b)(iii) of Schedule 3 to the Electoral Act.  The effect of repealing sub-subparagraph 12(b)(iii) is to revert to the pre-2006 position that if a person has been removed from the Roll by objection action on the mistaken belief that the person was not living at the enrolled address, this will constitute a ‘mistake of fact’ and so paragraph 12 will apply in relation to the vote.  This means that the person’s envelope will be included in the groups referred to in subparagraphs 10(b) and 11(b) and will then be dealt with under paragraph 18 of Schedule 3.

 

Item 4 - Paragraphs 15 and 16 of Schedule 3

Item 5 - Paragraph 18 of Schedule 3

Item 6 - 19 of Schedule 3

 

Items 4, 5 and 6 makes consequential amendments to paragraphs 15, 16, 18 and 19 due to the recasting of paragraphs 10 and 11 by item 2.  The operation of these provisions is not affected by the amendments.

 

Referendum (Machinery Provisions) Act 1984

 

Item 7 - Paragraph 10 of Schedule 4

 

Item 7 recasts paragraph 10 of Schedule 4 to the Referendum Act to primarily link the people to whom paragraph 11 applies with the Division or State or Territory in which they were living when they were removed from the electoral Roll.  In this way, the ballot papers of those people living in the State or Territory when they were removed from the Roll will have their referendum votes admitted to the scrutiny.  This is because the results of a referendum are calculated on a State or Territory basis.  The existing law requires the person to have been living within the Division where the person made the declaration vote.

 

Item 8 - Subparagraph 11(b) of Schedule 4

 

Consistent with the amendment made to the Electoral Act, item 8 repeals sub-subparagraph 11(b)(iii) of Schedule 4 to the Referendum Act.  The effect of repealing sub-subparagraph 11(b)(iii) is to revert to the pre-2006 position that if a person has been removed from the Roll by objection action on the mistaken belief that the person was not living at the enrolled address, this will constitute a ‘mistake of fact’ and so paragraph 11 will apply in relation to the vote.  This means that the person’s envelope will be included in the group referred to in subparagraph 10(a) and will then be dealt with under paragraph 16 of Schedule 4.

 

Item 9 - Paragraph 13 of Schedule 4

 

Item 9 updates the drafting style to the definition of ‘election’ by bolding the word ‘election’.

 

Item 10 - Paragraphs 14 and 15 of Schedule 4

 

Item 10 makes consequential amendments to paragraphs 14 and 15 to reflect amendments made to paragraph 10 by item 7.  While the references change, the amendments do not alter the existing law.

 

Item 11 - Paragraphs 16 and 17 of Schedule 4

 

Item 11 repeals existing paragraphs 16 and 17 as a consequence of the amendments made to paragraph 10 by item 7.  Item 11 also simplifies the drafting by merging paragraphs 16 and 17.  While the references change, the amendments do not alter the existing law.

 

Item 12 - Paragraph 19 of Schedule 4

 

Item 12 makes a consequential amendment to paragraph 19 to reflect the repeal of paragraph 17 by item 11.