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Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2013

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2010-2011-2012

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT (IMPROVING ELECTORAL ADMINISTRATION) BILL 2012

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon Gary Gray AO MP)

 

 

 



ELECTORAL AND REFERENDUM AMENDMENT (IMPROVING ELECTORAL ADMINISTRATION) BILL 2012

 

OUTLINE

The Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act), the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and the Taxation Administration Act 1953 (the Taxation Administration 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 3, 9, 10, 11, 15, 29 and 30 of the JSCEM Report.

 

The Bill contains provisions that:

·            set out the procedures to be followed when a ballot-box is opened prematurely, that is, before the close of the poll, other than in accordance with the relevant provisions of the Electoral Act and Referendum Act;

·            require ballot papers included in a ballot-box that is opened prematurely to be excluded from scrutiny;

·            remove the requirement under the Electoral Act and Referendum Act for an applicant for a pre-poll ordinary vote to complete and sign a certificate;

·            provide that pre-poll voting cannot commence earlier than 4 days after the date fixed for declaration of nominations for any type of election or by-election;

·            brings forward the deadline for applications for postal votes by one day from the Thursday before polling day to the Wednesday before polling day;

·            provide for further fixed periods of time to be provided to the augmented Electoral Commission (as defined in section 70 of the Electoral Act) to complete its inquiries into objections against proposed redistribution of electoral boundaries;

·            amend the Taxation Administration Act to allow the Commissioner of Taxation and other taxation officers to provide some forms of taxpayer information to the Australian Electoral Commission for the purposes of administering the Electoral Act and Referendum Act; and

·            make a number of related 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 (Improving Electoral Administration) 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 3, 9, 10, 11, 15, 29 and 30 made by the Joint Standing Committee on Electoral Matters (JSCEM) in its report entitled The 2010 Federal Election: Report on the conduct of the election and related matters (JSCEM Report).  It provides for a range of amendments to be made to the Commonwealth Electoral Act 1918 (the Electoral Act), the Referendum (Machinery Provisions) Act 1984 (the Referendum Act) and the Taxation Administration Act 1953 (the Taxation Administration Act).  Of most relevance to the issue of the Bill’s compatibility with human rights are the provisions in the Bill dealing with ballot papers and applications for postal votes and the provision enabling the Taxation Commissioner and other taxation officers to disclose personal information to the Electoral Commissioner in certain circumstances.

The Bill provides for procedures to be followed when a ballot-box is opened prematurely - that is, before the close of the poll, other than in accordance with the relevant provisions of the Electoral Act and Referendum Act.  It also requires ballot papers included in such ballot-boxes to be excluded from scrutiny under Part XVIII of the Electoral Act and Part VI of the Referendum Act.  The Bill also brings forward the deadline for applications for postal votes by one day from the Thursday before polling day to the Wednesday before polling day.  The Bill also provides for the Taxation Commissioner and other taxation officers to disclose personal information to the Electoral Commissioner in certain circumstances.

 

Human rights implications

The Bill engages Articles 17 and 25 of the International Covenant on Civil and Political Rights (ICCPR).  Each will be dealt with in turn.

Article 17 of the ICCPR

 

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy.  This right may be limited to the extent that such limitations are authorised by law and are not arbitrary.  In order for an interference with privacy not to be arbitrary, the interference must be in accordance with the provisions, aims and objects of the ICCPR and be ‘reasonable’ in the particular circumstances.  The United Nations Human Rights Committee has interpreted the requirement of ‘reasonableness’ to imply that any interference with privacy must, ‘be proportional to the end sought and be necessary in the circumstances of any given case’ ( Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994) at 8.3).

 

The Bill contains a provision (item 53) which will amend the Taxation Administration Act 1953 to allow the Taxation Commissioner and other taxation officers to provide some forms of taxpayer information to the Australian Electoral Commission for the purpose of administering the Electoral Act or Referendum Act.  The disclosure of information under subsection 335-65(8) without a person’s consent will engage the protection from arbitrary and unlawful interference with privacy in Article 17 of the ICCPR.  This means that the limitation or interference with a person’s privacy imposed by subsection 335-65(8) must be for a legitimate aim, and be reasonable, necessary and proportionate to achieving this aim.

 

Item 53 gives effect to recent amendments to the Electoral Act that enable the Electoral Commissioner to directly update or transfer a person’s enrolment without claim or notice from the person and to enrol an unenrolled person without claim or notice from the person (sections  103A and 103B).   The Joint Standing Committee on Electoral Matters recommended in this context that the relevant legislation governing the protection of personal data collected by the Australian Taxation Office (ATO) which would prevent the ATO from providing relevant data to the AEC be amended.  Allowing the Taxation Commissioner to disclose information for the purpose of administering the Electoral Act or Referendum Act in this way will enable the Electoral Commissioner to ensure that people who are eligible to vote are registered on the electoral roll.

 

The proposed amendments to subsection 355-65(8) are proportionate to achieving the aim of enabling the Electoral Commissioner to ensure that people who are eligible to vote are registered on the electoral roll.  Item 2A in the table in subsection 355-65(8) provides that the exception to the prohibition on the disclosure of protected information applies only to information disclosed to, or obtained by, the Taxation Commissioner after the commencement of the table item that is for the purpose of administering the Electoral Act or Referendum Act. 

 

This means that only information that has been disclosed to or obtained by the Taxation Commissioner after the commencement of the provision may be disclosed to the Electoral Commissioner.  Information disclosed to or obtained by the Taxation Commissioner prior to the commencement of the provision cannot be disclosed to the Electoral Commissioner under this proposed amendment.  Furthermore, the requirement that the disclosure be made for the purpose of administering the Electoral Act or Referendum Act also ensures that the disclosure is only be made where it is for those specific purposes - i.e., information cannot be disclosed for unrelated purposes.

 

The amendments proposed by item 53 do not produce any deleterious effects on the right to privacy.  However, to the extent that they do limit that right, they are reasonable, necessary and proportionate to achieving the aim of enabling the Electoral Commissioner to ensure that people who are eligible to vote are registered in accordance with the Electoral Act and Referendum Act. Specifically, the potential benefits associated with interfering with a person’s privacy outweigh any deleterious effects the proposed amendments might have on a person’s right to privacy.

 

 

Article 25 of the ICCPR

The UN Human Rights Committee (the UNHRC) states in its General Comment 25 that Article 25 of the ICCPR ‘recognizes and protects the right of every citizen to take part in the conduct of public affairs, the right to vote and to be elected and the right to have access to public service’.  General Comment 25 provides guidance on these rights.  Paragraph 4 of General Comment 25 provides that any conditions imposed on the exercise of the rights protected by Article 25 must be based on objective and reasonable criteria.  Paragraph 10 provides that the right to vote at elections and referenda must be established by law subject only to reasonable restrictions, such as setting a minimum age limit for the right to vote.

The Bill contains machinery provisions that set out the procedures that must be followed where an officer becomes aware that a ballot box containing ballot papers has been opened prematurely.  These provisions do not limit the right to vote provided for by Article 25 of the ICCPR.  Rather, they provide, in order to preserve the integrity of the voting process, that where a ballot box has been opened prematurely, the ballot papers contained in the box will be excluded from the scrutiny.  However, to the extent that the provisions do limit the right to vote, by providing that a person’s vote will not be counted in the scrutiny in very specific circumstances, the provisions are reasonable for the purposes of paragraph 10 of General Comment 25, for the reasons outlined below. 

Provisions excluding ballot papers contained in ballot boxes opened other than in accordance with the Electoral Act and Referendum Act

Proposed new sections 238B of the Electoral Act and 41AB of the Referendum Act set out the procedures that must be followed if an officer becomes aware that a ballot box containing ballot papers has been opened prematurely.  Those sections further provide that the ballot papers contained in a ballot box that has been opened prematurely are excluded from the scrutiny under Part XVIII of the Electoral Act and Part VI of the Referendum Act.

 

The provisions have been included to address an issue that arose during the 2010 federal election, in which ballot-boxes in two electoral divisions had been prematurely opened before the close of polls.  Uncertainty ensued as to how the affected ballot papers should be treated.

 

Proposed sections 238B and 41AB may arguably be seen as limiting indirectly the right to vote contained in Article 25 of the ICCPR, by providing that that right may be rendered nugatory where a ballot box has been opened other than in accordance with the Electoral Act or the Referendum Act.  As outlined above, paragraph 10 of General Comment 25 requires that any restriction on the right to vote must be ‘reasonable’.

 

To the extent that sections 238B of the Electoral Act and 41AB of the Referendum Act limit the right to vote, the provisions are reasonable.  This is because excluding ballot papers that have been affected in this way from the scrutiny would maintain the integrity of the voting process.  Paragraph 20 of General Comment 25 provides, amongst other things, that “the security of ballot boxes must be guaranteed”. 

 

Although the provisions do not, themselves, guarantee the security of ballot boxes, they provide that ballot papers affected in this way should be excluded from the scrutiny - thus giving effect to the principle in paragraph 20 of General Comment 25 that “voters should be protected from . . . any unlawful or arbitrary interference with the voting processes.”  

 

The fact that the Australian Electoral Commission can file a petition disputing an election under section 357 of the Electoral Act and section 102 of the Referendum Act  if the excluded ballot papers are likely to affect the result is also significant in this regard.  This is because even if the provisions limit a person’s right to vote, if a person’s vote is likely to affect the outcome of the election, it may still count towards any petition seeking to void the election or referendum. 

 

Further, proposed sections 238B and 41AB will only apply where ballot boxes have been opened other than in accordance with the Electoral Act or Referendum Act.  Following the incidents in the 2010 federal election and subsequent amendments to policies, procedures and training provided to electoral staff, the Australian Electoral Commission expects these provisions to have if any, only a narrow application.  For this reason, combined with the reasons cited above in relation to the integrity of the voting process, these provisions, to the extent they limit the right to vote contained in Article 25 of the ICCPR, are reasonable limitations to that right.

 

Provisions shortening the time in which applications for postal votes can be made

Proposed amendments to sections 184(5) of the Electoral Act and 55(5) of the Referendum Act shorten, by one day, the period in which applications for postal votes can be made, in response to recommendation 15 of the JSCEM Report.  JSCEM agreed with the Australian Electoral Commission’s submission that bringing forward the deadline for making postal vote applications by one day would provide a more reasonable period to dispatch postal voting materials to applicants, with little or no material impact on the number of postal votes that are ultimately admitted to the count.

 

Although the provisions effectively shorten the time in which postal vote applications can be made, they do not limit the right to vote itself.  Postal voting is only one of the means of voting.  For example, voters can still vote by other means, such as at a mobile polling booth, pre-poll or at a polling place. 

 

 

Conclusion

The Bill is compatible with human rights because it does not limit the right to vote contained in Article 25 of the ICCPR.  To the extent that it contains provisions that indirectly limit this right (provisions dealing with the ballot papers), those provisions are nevertheless reasonable for the purposes of paragraph 10 of General Comment 25, on the basis that they are necessary to ensure the integrity of the voting process and will only apply in very limited circumstances.  The Bill does not limit the right to privacy contained in Article 17 of the ICCPR.  However, to the extent that they limit the right to privacy, those limitations are not arbitrary or unlawful.  They are reasonable, necessary and proportionate to achieving the legitimate aim of enabling the Electoral Commissioner to directly enrol a person and update a person’s enrolment.

 

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 (Improving Electoral Administration) Act 2012 .

 

Clause 2 - Commencement

 

2.              This clause contains a table which sets out when each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table.  It also states that any other statement in column 2 has effect according to its terms.

 

Clause 3 - Schedule(s)

 

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

 

Schedule 1 - Amendments

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1 - Subsection 72(2)

 

This item omits the words “and any further objections”.  This item is consequential to item 2.  It reflects the additional time given to the augmented Electoral Commission (as established under section 70 of the Electoral Act) by item 2 to complete its consideration of the initial objections, if it determines that its redistribution proposal is ‘significantly different’ from that of the Redistribution Committee (as established under section 60 of the Electoral Act).

 

Item 2 - Subparagraph 72(12)(d)(i)

 

This item omits the words “may forthwith” and substitutes “may, before the end of the period of 7 days beginning on the day of the announcement,”.  In the event that the augmented Electoral Commission (as established under subsection 70(1) of the Electoral Act) determines that its redistribution proposal is ‘significantly different’ from that of the Redistribution Committee (as established under section 60 of the Electoral Act), this clause gives the augmented Electoral Commission an additional 7 days in which to complete its consideration of the initial objections.

 

Item 3 - Subparagraph 72(13)(a)

 

This item omits the words “forthwith upon the making of the public announcement”, and substitutes “before the end of the period of 7 days beginning on the day of the announcement”.  This clause extends the period in which a person or organisation must lodge with the Electoral Commission a written further objection by a period of up to 7 days beginning on the day on which the augmented Electoral Commission makes a public announcement under subsection 72(10) that includes a statement under subsection 72(12)(d) of the Electoral Act.

 

Item 4 - Subparagraph 72(13)(b)

 

This item inserts a new subparagraph 72(13)(ba).  It provides that the augmented Electoral Commission must complete its inquiry into a further objection as soon as is practicable and, in any event, before the end of the period of 14 days after the end of the period referred to in new subsection 72(13)(a) - i.e., 7 days beginning on the day on which the augmented Electoral Commission makes a public announcement that includes a statement under subsection 72(12)(d) of the Electoral Act.  This subparagraph gives the augmented Electoral Commission an additional period of 21 days to complete its inquiry into a further objection.

 

Item 5 - Subsection 185(3)(b)

 

This item omits “except in the case of an elector whose address has been excluded from the Roll under section 104—”.  This item complements the proposed amendments to the Electoral Act by the Electoral and Referendum Amendment (Improving Electoral Procedure) Bill 2012 , which, if enacted, will provide that persons who are silent electors (i.e., electors whose addresses have been excluded from the Roll under section 104 of the Act) who change address do not need to submit another application to be treated as a silent elector (i.e., their registration as a silent elector will automatically by carried across with their transfer of enrolment).  By amending subsection 185(3)(b) these silent electors who also are registered as General Postal Voters will no longer need to re-apply for registration as a General Postal Voter (ie. their General Postal Voter registration will be carried across also). 

 

Item 6 - Subsection 200D(4)

 

This item omits from subsection 200D(4) “second” and substitutes “fourth”.  This item delays the making of applications for pre-poll votes.  This is in order to ensure that there has been enough time following the close of nominations to allow for ballot papers to be printed and distributed to pre-poll voting centres for the commencement of polling.

 

Item 7 - Subsection 200D(5)

 

This item inserts after “earlier than the” in subsection 200D(5) “fourth”.  This item delays the making of applications for pre-poll votes.  This is in order to ensure that there has been enough time following the close of nominations to allow for ballot papers to be printed and distributed to pre-poll voting centres in time for the commencement of polling.

 

Item 8 - Section 200DC (definition of issuing officer )

 

This item is consequential to item 12, and repeals the definition of ‘issuing officer’.   The concept of an ‘issuing officer’ in Division 3 of Part XVA of the Electoral Act is redundant, on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12.

 

 

 

Item 9 - Paragraph 200DG(2)(a)

 

This item is consequential to item 12.  It repeals paragraph 200DG(2)(a), on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12.

 

Item 10 - Paragraph 200DG(2)(c)

 

This item is consequential to item 12.  It omits the first occurring “the issuing officer” and substitutes “a voting officer”.  Following the repeal of the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate, the concept of an ‘issuing officer’ is redundant.  It has been replaced with a ‘voting officer’.  Prior to these amendments, an ‘issuing officer’ was a subset of voting officer (section 200DH(2) of the Electoral Act). 

 

Item 11 - Paragraph 200DG(2)(c)(ii)

 

This item is consequential to item 12.  It omits “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 12 - Paragraph 200DH

 

This item repeals paragraph 200DH, which requires an applicant for a pre-poll ordinary vote to complete and sign a certificate.

 

Item 13 - Paragraph 200DI(1)

 

This item is consequential to item 12.  It omits “The issuing officer”, and substitutes “A voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 14 - Paragraph 200DI(2)

 

This item is consequential to item 12.  It omits “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 15 - Paragraph 200DJ(1)

 

This item is consequential to item 12.  It omits “the issuing officer” and substitutes a “voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 16 - Paragraphs 200DJ(2) and (3)

 

This item is consequential to item 12.  It omits from paragraphs 200DJ(2) and (3) “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 17 - Paragraphs 200DL(1)(a), (b) and (c)

 

This item repeals paragraphs 200DL(1)(a), (b) and (c), on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12. 

 

Item 18 - Subsection 200DL(1) (note)

 

This item repeals the note under subsection 200DL(1), on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12.

 

Item 19 - Section 200DM

 

This item omits from section 200DM “sections 200DH and 200DJ, been given a pre-poll vote certificate for ordinary voting and” and substitutes “section 200DJ, been given”.  This reflects the fact that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12.

 

Item 20 - Paragraph 200DM(a)

 

This item omits from paragraph 200DM(a) “the certificate or”, on the basis that the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 12.

 

Item 21 - Section 230

 

This item is consequential to item 12.  It omits from section 230 “the issuing officer” and substitutes “a voting officer”.   It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 22 - Subsection 238(1)

 

This item is consequential to item 12.  It omits from section 238(1) “the issuing officer” and substitutes “a voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 23 - Subsection 238(1)

 

This item is consequential to item 12.  It omits from section 238(1) the last occurring “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 24- Before section 239

 

This item inserts, before section 239, a new provision - section 238B - which sets out the procedures to be followed when ballot-boxes are opened before the close of the poll, other than in accordance with the Electoral Act.  Subsection 238(1) provides that section 238B applies if, in relation to an election, an officer becomes aware that a ballot-box containing ballot papers for an election has been opened before the close of the poll other than in accordance with the Electoral Act.  Subsections 238B(2) and (3) describe the procedures that an officer must follow if section 238B applies under subsection 238B(1).  Subsection 238B(4) provides that the ballot papers placed in a parcel under subsection 238B(2) are excluded from scrutiny under Part XVIII of the Electoral Act.

 

Section 238B has been inserted into the Electoral Act to address an issue that arose during the 2010 federal election, in which ballot-boxes in two electoral divisions had been prematurely opened before the close of polls.  It sets out the procedures to be followed where an officer becomes aware that a ballot-box containing ballot papers for an election has been opened before the close of the poll other than in accordance with the Electoral Act, and expressly provides that ballot papers included in a parcel under subsection 238B(2) are excluded from scrutiny under Part XVIII of the Electoral Act.  The inclusion in subsection 238B(1) of the words “for an election” makes it clear that section 238B applies to ballot papers for an election under the Electoral Act, as opposed to ballot papers for a referendum under the Referendum Act.  It is possible for ballot papers for an election and a referendum to be placed in the same ballot box, see subsection 29(2) of the Referendum Act.  Item 32, Schedule 1 of this Bill amends the Referendum Act for equivalent circumstances. 

 

Item 25 - Subsection 248(1)

 

This item is consequential to item 24 and inserts into subsection 248(1), before “239”, “238B”.  Subsection 248(1) describes the application of Part XVI (the polling) to the special rules relating to voting in Antarctica, set out in Part XVII.  The Part XVI rules do not apply with the exception of certain provisions included within brackets.  New section 238B is included in the excepted list within the brackets and therefore 238B will apply to the taking of a poll in Antarctica. 

 

Item 26 - At the end of subsection 248(2)

 

This item provides that for the purposes of sections 238A and 238B of the Electoral Act (which deal with discarded ballot papers and ballot papers contained in boxes that are opened other than in accordance with the Electoral Act), a reference in subsections 238A(3) and 238B(3) to the Divisional Returning Officer for the Division is taken to be a reference to the Electoral Commission.

 

Item 27 - Paragraph 268(1)(a)

 

This item is consequential to item 12.  It omits “the issuing officer” and substitutes “a voting officer”.  It has been included as a result of the repeal of section 200DH, which defined an ‘issuing officer’ in Division 3 of Part XVA of the Act as a voting officer. 

 

Item 28 - Paragraph 393A(1)(f)

 

This item omits from paragraph 393A(1)(f) “(both for ordinary voting and for declaration voting)”, and substitutes “for declaration voting”.   This reflects the repeal by item 12 of the requirement under section 200DH for an applicant for a pre-poll ordinary vote to complete and sign a certificate.

 

Referendum (Machinery Provisions) Act 1984

 

Item 29 - Subsection 32(1)

 

This item is consequential to item 40.  It omits “the issuing officer” and substitutes “a voting officer”.  It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 30 - Subsection 41(1)

 

This item is consequential to item 40.  It omits “the issuing officer” and substitutes “a voting officer”. It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 31 - Subsection 41(1)

 

This item is consequential to item 40.  It omits the last occurring “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 32 - Before section 41A

 

This item inserts before section 41A a new section 41AB in the Referendum Act, which mirrors new section 238B of the Electoral Act.  Section 41AB sets out the procedures to be followed when ballot-boxes are opened before the close of the poll, other than in accordance with the Referendum Act.  Subsection 41AB(1) provides that section 41AB applies if, in relation to a referendum, an officer becomes aware that a ballot-box containing ballot papers for the referendum has been opened before the close of the poll other than in accordance with the Referendum Act.  Subsections 41AB(2) and (3) describe the procedures that an officer must follow if section 41AB applies under subsection 41AB(1).  Subsection 41AB(4) provides that the ballot papers placed in a parcel under subsection 41AB(2) are excluded from scrutiny under Part VI of the Referendum Act.

 

Like section 238B of the Electoral Act, section 41AB of the Referendum Act is being inserted to address the potential problem of ballot-boxes being opened prematurely, before the close of polls.  It sets out the procedures to be followed where an officer becomes aware that a ballot-box containing ballot papers has been opened before the close of the poll other than as mentioned in subsection 29(2), and expressly provides that ballot papers included in a parcel under subsection 41AB(2) are excluded from scrutiny under Part VI of the Referendum Act.  The inclusion of the words “for the referendum” makes it clear that section 41AB applies only to ballot papers for a referendum that have not been opened in accordance with subsection 29(2).  This means that if the ballot papers for a referendum are included in a ballot-box which has been used for both the referendum and an election, the ballot box shall not be opened except in accordance with the Referendum Act or the Electoral Act.

 

 

 

 

Item 33 - Subsection 73B(4)

 

This item inserts “fourth” into subsection 73B(4), after the words “before the”.  This item delays the making of applications for pre-poll votes. This is in order to ensure that in a referendum that is held in conjunction with an election, voting for both the election and the referendum will commence at the same time.

 

Item 34 - Subsection 73B(5)

 

This item omits from subsection 73B(5) “second”, and substitutes “fourth”.  This item delays the making of applications for pre-poll votes. This is in order to ensure that in a referendum that is held in conjunction with an election, voting for both the election and the referendum will commence at the same time.

 

Item 35 - Paragraph 73C(c)

 

This item repeals paragraph 73C(c), on the basis that the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 40.

 

Item 36 - Paragraph 73CC (definition of issuing officer )

 

This item repeals the definition of “issuing officer” and is consequential to item 40.  It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 37 - Paragraph 73CG(2)(a)

 

This item repeals paragraph 73CG(2)(a) of the Referendum Act, on the basis that the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 40.

 

Item 38 - Paragraph 73CG(2)(c)

 

This item is consequential to item 40.  It omits “the issuing officer” (first occurring) and substitutes “a voting officer”.  It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 39 - Paragraph 73CG(2)(c)(ii)

 

This item is consequential to item 40.  It omits “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 73CH, which defined an ‘issuing officer’ in Division 3 of Part IVA of the Referendum Act as a voting officer. 

 

Item 40 - Paragraph 73CH

 

This item repeals paragraph 73CH, which requires an applicant for a pre-poll ordinary vote to complete and sign a certificate.

 

Item 41 - Subsection 73CI(1)

 

This item omits “The issuing officer” and substitutes “A voting officer”.  It has been included on the basis that section 73CH, which referred to an issuing officer, has been repealed by item 40.

 

Item 42 - Subsections 73CI(2) and (4)

 

This item omits “issuing officer” and substitutes “voting officer”.  It has been included as a result of the repeal of section 73CH, which referred to an issuing officer, by item 40.

 

Item 43 - Subsection 73CJ(1)

 

This item omits “the issuing officer” and substitutes “a voting officer”.   It has been included as a result of the repeal of section 73CH, which referred to an issuing officer, by item 40.

 

Item 44 - Subsections 73CJ(2) and (3)

 

This item omits “issuing officer” and substitutes “voting officer”.  It has been included on the basis that section 73CH, which referred to an issuing officer, has been repealed by item 40.

 

Item 45 - Paragraphs 73CL(1)(a), (b) and (c)

 

This item repeals paragraphs 73CL(1), (a), (b) and (c), on the basis that the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 40.

 

Item 46 - Subsection 73CL(1) (note)

 

This item repeals the notice under subsection 73CL(1), on the basis that the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 40.

 

Item 47 - Section 73CM

 

This item omits from section 73CM “sections 73CH and 73CJ, been given a pre-poll vote certificate for ordinary voting and”, and substitutes “section 73CJ, been given”.  This reflects the repeal by item 40 of the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate.

 

Item 48 - Paragraph 73CM(a)

 

This item omits from paragraph 73CM(a) “the certificate or”, on the basis that the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate has been repealed by item 40.

 

Item 49 - Subsection 75(1)

 

This item omits from subsection 75(1) “and 41AA”, and substitutes “41AA and 41AB”.  Subsection 75(1) describes the application of Part III (voting at a referendum) to the special rules relating to voting in Antarctica, set out in Part V.  The Part III rules do not apply with the exception of certain provisions included within brackets.  New section 41AB is included in the excepted list within the brackets and therefore it will apply to voting at a referendum in Antarctica.

 

Item 50 - At the end of subsection 75(2)

 

This item provides that for the purposes of sections 41AA and 41AB of the Referendum Act (which deal with discarded ballot papers and ballot papers contained in boxes that are opened other than in accordance with the Referendum Act), a reference in subsections 41AA(3) and 41AB(3) to the Divisional Returning Officer for the Division is taken to be a reference to the Electoral Commission.

 

Item 51 - Paragraph 93(1)(a)

 

This item omits “the issuing officer” and substitutes “a voting officer”.  It has been included on the basis that section 73CH, which referred to an issuing officer, has been repealed by item 40.

 

Item 52- Paragraph 142A(1)(f)

 

This item omits from paragraph 142A(1)(f) “(both for ordinary voting and for declaration voting)”, and substitutes “for declaration voting”.  This reflects the repeal by item 40 of the requirement under section 73CH for an applicant for a pre-poll ordinary vote to complete and sign a certificate.

 

Taxation Administration Act 1953

 

Item 53 - Subsection 355-65(8) in Schedule 1 (after table item 2)

 

This will allow the Australian Taxation Office to disclose protected information (within the meaning of the Taxation Administration Act) to the Electoral Commissioner, and will help facilitate direct updating and transferring of enrolment under the Electoral Act. Item 2A will commence on the day after this Act receives the Royal Assent.

 

Item 53 introduces a new exception to section 355-25 of Schedule 1 to the Taxation Administration Act. Subject to a range of specific exceptions to facilitate efficient and effective government administration and law enforcement, this section makes it an offence for taxation officers to record or disclose protected information.

 

This new exception ensures that it will not be an offence for a taxation officer to make a record for, or a disclosure to, the Electoral Commissioner if the record or disclosure:

•          is of information that the Commissioner of Taxation has obtained since the commencement of this item; and

•          is for the purpose of administering the Electoral Act or the Referendum Act

           

This will allow the Australian Taxation Office (ATO) to provide otherwise protected information (such as the names and addresses of taxpayers) to the Electoral Commissioner, with a view to maintaining the veracity of the roll of electors.

 

Example 1.1

In May 2012 Ray lodged an application for a tax file number with the ATO, in which he advises the Commissioner of Taxation that he resides at 69 Joslin Street.  As the Commissioner obtains Ray’s address prior to the commencement of Item 53 of this Bill, this exception would not apply in relation to this information.

 

In July 2014 Ray lodges an income tax return with the ATO, and again advises the Commissioner that he resides at 69 Joslin Street.  Assuming that item 53 of this Bill commences prior to Ray lodging this income tax return, this exception would apply in relation to Ray’s address.  Consequently, a taxation officer could provide this information to the Electoral Commissioner for the purposes of administering either the Electoral Act or the Referendum Act without committing an offence under section 355-25 of Schedule 1 to the Taxation Administration Act.

 

Part 2 - Application provisions

 

Item 54- Application provisions

 

This item contains application provisions.  Sub-item 54(1) provides that the amendments made by Schedule 1 (except items 1-5 and 53) apply in relation to elections and referendums the writs for which are issued on or after the commencement of item 38. Subitem 54(2) provides that the amendments made by items  1 to 4 apply in relation to notices published under paragraph 68(1)(c) of the Electoral Act (relating to a proposed redistribution of a State or Territory) on or after the commencement of item 38.  Subitem 54(3) provides that the amendment made by item 5 (silent electors) applies in relation to claims for transfer of enrolment made on or after the commencement of that item.

 

 

Schedule 2 - Amendments commencing on 1 January 2014

 

Part 1 - Amendments

 

Commonwealth Electoral Act 1918

 

Item 1- Subsection 184(5)

 

This item omits from subsection 184(5) the words “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item brings forward the deadline for applications for postal votes by one day from the Thursday 2 days before polling day to the Wednesday 3 days before polling day.  This is a practical amendment that reflects the reality that there is limited chance of electors receiving postal voting materials that are sent out after the current deadline of 6pm on the Thursday before polling day.  The existing deadline is potentially misleading to electors who might expect that as long as they have met the deadline, they will receive their postal voting materials in time for them to be able to cast their vote before the close of polling.

 

Item 2 - Subsection 188(4)

 

This item is consequential to item 1 and omits from subsection 188(4) the words “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item reflects the change in the time in which applications for postal votes must be made under subsection 184(5) - namely that applications must be made by the Wednesday that is 3 days before the polling day in an election.

 

Item 3 - Subsection 188(4) (note)

 

This item is consequential to item 1 and omits from the note under subsection 188(4) the words “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item reflects the change in the time in which applications for postal votes must be made under subsection 184(5) - namely, that applications must be made by the Wednesday that is 3 days before the polling day in an election.

 

Referendum (Machinery Provisions) Act 1984

 

Item 4 - Subsection 55(5)

 

This item omits from subsection 55(5) “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item brings forward the deadline for applications for postal votes by one day from the Thursday 2 days before polling day to the Wednesday 3 days before polling day.  This is a practical amendment that reflects the reality that there is limited chance of electors receiving postal voting materials that are sent out after the current deadline of 6pm on the Thursday before polling day.  The existing deadline is potentially misleading to electors who might expect that as long as they have met the deadline, they will receive their postal voting materials in time for them to be able to cast their vote before the close of polling.

 

Item 5 - Subsection 61(2B)

 

This item is consequential to item 4 and omits from subsection 61(2B) “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item reflects the change in the time in which applications for postal votes must be made under subsection 55(5) - namely that applications must be made by the Wednesday that is 3 days before the polling day in an election.

 

Item 6 - Subsection 61(2B) (note)

 

This item is consequential to item 4 and omits from the note under subsection 61(2B) “Thursday that is 2 days”, and substitutes “Wednesday that is 3 days”.  This item reflects the change in the time in which applications for postal votes must be made under subsection 55(5) - namely that applications must be made by the Wednesday that is 3 days before the polling day in an election.

 

Part 2 - Application provision

 

Item 7 - Application provision

 

This item provides that the amendments made by this Schedule apply in relation to elections and referendums the writs for which are issued on or after the commencement of this Schedule (i.e., 1 January 2014).