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Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2013

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2010-2011-2012- 2013

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

ELECTORAL AND REFERENDUM AMENDMENT (IMPROVING ELECTORAL ADMINISTRATION) BILL 2012

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(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 (2010 JSCEM Report).  The Bill implements the Government response to Recommendations 3, 9, 10, 11, 15, 29 and 30 of the 2010 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.

 

Following its introduction into the House of Representatives on 29 November 2012, the Bill was referred to JSCEM.  JSCEM considered the Bill and reported on 27 February 2013 (2013 JSCEM Report).  The 2013 Report made two recommendations relating to the addition of a new section to the Electoral Act and the Referendum Act by the Bill.  This section, new section 238B which appears at Item 24 of Schedule 1, applies a rule to instances where ballot boxes are opened, not in accordance with the law.  The Committee recommended that:

·       new section 238B be amended to incorporate savings procedures for some ballot papers; and

·       that a new offence be drafted to deal with electoral officers who unlawfully interfere with a ballot box or ballot papers. 

 

In reviewing this matter, the Government is persuaded by the reasoning contained in the 2013 JSCEM Report that this measure should be amended to include a savings provision and a new criminal offence.  The Government amendments to the Bill make those amendments to the Electoral Act and equivalent amendments to the Referendum Act. 

These Government amendments also omit two provisions in section 328B of the Electoral Act.  The amendments are in response to Recommendation 23 of JSCEM’s 2010 Report which recommended that the Government review the minimum font sizes specified in section 328B of the Act.  Section 328B sets out rules relating to authorisation details for how to vote cards, including mandating the font size of the authorisation details on the cards.  The rules relating to font size of the authorisation details on how to vote cards are omitted by Government amendment. 

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.  This measure is subject to Government amendments which allow for ballots to be included in the scrutiny unless the Australian Electoral Officer for the State or Territory concludes that the ballot papers have been fraudulently altered or otherwise interfered with so as not to reflect the voters’ intention.    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.  The Government amendments to this measure set out a process allowing for investigation and identification of ballots which in the opinion of the Australian Electoral Officer (AEO) for the State or Territory have been fraudulently altered or otherwise interfered with so as not to reflect the voters’ intention.  Therefore where it is the case that the AEO concludes that some ballot papers do not reflect the voters’ intentions, those ballot papers will be excluded from the scrutiny; other ballot papers will be saved and counted.    

Provisions excluding some 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 such a ballot box will be examined by the AEO.  Depending on the facts of each situation, the AEO may conclude that some ballot papers have been fraudulently altered or otherwise interfered with so as not to reflect the voters’ intention.  In that case those ballot papers will not be counted.  

 

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 may limit the right to vote, the provisions are reasonable.  This is because the AEO will consider the circumstances surrounding the unlawful opening of any ballot box and only exclude ballots which do not represent the voters’ intention.  Excluding ballot papers from the scrutiny that have been tampered with so as to not represent the voters’ intention 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 which do not represent the voters’ intention  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 in the event that any ballot papers that are excluded 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 may indirectly limit this right (provisions dealing with the ballot papers), those provisions are nevertheless reasonable for the purposes of paragraph10 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

 

Amendments 1 and 2

 

These amendments amend the Commencement provisions by omitting items 25 and 49 from the Bill as a consequence of amendment number 5 and 12.  Items 25 and 49 have been omitted from the Bill as they are no longer necessary. 

 

Commonwealth Electoral Act 1918

 

Amendment 3

 

This amendment amends proposed subsection 238B(2) by identifying an officer in that clause as the “reporting officer”. 

 

Amendment 4

 

This amendment omits the remainder of proposed section 238B by replacing subsections 238B(3) and (4) with new subsections 238B(3) to 238B(15).  These amendments are being made following on from the 27 February 2013 report of the Joint Standing Committee on Electoral Matters (JSCEM) into the Electoral and Referendum Amendment (Improving Electoral Administration) Bill 2012.

 

Proposed subsections 238B(3) to 238B(13) set out a staged process commencing where an officer (“the reporting officer”) notes that a ballot box has been opened otherwise than in accordance with the Act. 

 

As ballot boxes may contain ballot papers or ballot papers contained in envelopes the remaining subsections deal with both cases.  In some cases, ballot papers are contained in envelopes because, for example, in the case of pre-poll declaration votes (see s.200E) electors mark a ballot paper but place it in an envelope which they endorse.  They give the envelope (containing the ballot paper) to the relevant officer who places the envelope in a ballot box. 

 

At proposed subsections 238B(3) and (4) the reporting officer prepares a report, which, for example, may include details of witnesses to the circumstances surrounding the unlawful opening of the ballot box.  This report, the parcel containing the ballot papers or envelopes containing ballot papers, from the relevant box, the ballot box itself and any other thing that may be relevant to the circumstances surrounding the unlawful opening of the ballot box are sent on to the Divisional Returning Officer (DRO).  Things may include normal electoral processing reports and returns or copies of those documents.

 

Following this stage the material will be sent to the DRO (at subsection 238B(5)) who has a role to examine the material and then send on to the Australian Electoral Officer (AEO) for the State or Territory in the Division is located.  The report is sent to the Divisional Returning Officer to ensure that he or she is aware that a ballot box or ballot boxes still remain to be examined by the AEO. 

 

At proposed subsections 238B(6) to 238B(10) the AEO must make a decision with respect to whether a ballot paper or envelope containing ballot papers are to be included in the scrutiny.  The ballot paper is to be included in the scrutiny unless the AEO is satisfied that the ballot has been fraudulently altered or otherwise interfered with so as not to reflect the voter’s intention.  An envelope containing a ballot paper is to be included in the scrutiny unless the AEO is satisfied that the envelope has been fraudulently altered.

 

At proposed subsections 238B(11) to 238B(13) the AEO must deal with the ballot papers or envelopes and advise candidates for the relevant election of the conclusions they have reached. 

 

Proposed subsections 238B(14) and 238B(15) set out a special requirement on the AEO to be responsible for the safe custody of the materials and store them until directed by the Electoral Commissioner that the materials may be destroyed.  These subsections protect the materials in the same way as other electoral materials are protected under section 393A of the Electoral Act. 

 

Amendments 5 and 6

 

These amendments omit the operation of proposed new section 238B to voting in Antarctica. 

 

Amendments 7 and 8

 

These amendments make small technical amendments to the Electoral Act by omitting subsections 328B(2) and (3) and a consequential amendment to subsection 328B(4) as subsections 328B(2) and (3) have been omitted.  These amendments implement Recommendation 23 of the 2010 JSCEM Report which recommended that the Government review the minimum font sizes for the authorisation details for How to Vote Cards specified in section 328B of the Act.  The amendments omit a specific requirement for the minimum font size for the authorisation details on How to Vote Cards. 

 

Amendment 9

 

This amendment inserts an offence with a penalty of six months’ imprisonment for an officer who does an act which results in the unlawful destruction of, taking of, opening of, or interference with a ballot box or a ballot paper.  “Officer” is defined to include a broad range of roles in section 4 of the Electoral Act.  This offence is being inserted in response to a recommendation made in the 27 February 2013 JSCEM report and is drawn in form from the existing offence at paragraph 339(1)(h) of the Electoral Act.

 

Referendum (Machinery Provisions) Act 1984

 

Amendment 10

 

This amendment amends proposed section 41AB of the Referendum (Machinery Provisions) Act 1984 by identifying an officer in that clause as the “reporting officer”. 

 

Amendment 11

 

This amendment omits the remainder of proposed section 41AB by replacing subsections 41AB(3) and (4) with new subsections 41AB(3) to 41AB(15).

 

Proposed subsections 41AB(3) to 41AB(13) set out a staged process to follow where an officer (“the reporting officer”) notes that a ballot box has been opened otherwise than in accordance with the Act.

 

As ballot boxes may contain ballot papers or ballot papers contained in envelopes the remaining subsections deal with both cases.  In some cases, ballot papers are contained in envelopes because, for example, in the case of pre-poll declaration votes (see s.73D) electors mark a ballot paper but place it in an envelope which they endorse.  They give the envelope (containing the ballot paper) to the relevant officer who places the envelope in a ballot box. 

 

At proposed subsections 41AB(3) and (4) the reporting officer prepares a report, which, for example, may include details of witnesses to the circumstances surrounding the unlawful opening of the ballot box.  This report, the parcel containing the ballot papers (or envelopes containing ballot papers) from the relevant box, the ballot box itself and any other thing that may be relevant to the circumstances surrounding the unlawful opening of the ballot box are sent to the Divisional Returning Officer (DRO).  Things may include normal electoral processing reports and returns or copies of those documents.

 

Following this stage, the material will be sent to the DRO (at subsection 41AB(5)) who has a role to examine the material and then send on to the Australian Electoral Officer (AEO) for the State or Territory in which the Division is located.  The report is sent to the Divisional Returning Officer to ensure that he or she is aware that a ballot box or ballot boxes still remain to be examined by the AEO. 

 

At proposed subsections 41AB(6) to 41AB(10) the AEO must make a decision with respect to whether a ballot paper or envelope containing ballot papers are to be included in the scrutiny.  The ballot paper is to be included in the scrutiny unless the AEO is satisfied that the ballot paper has been fraudulently altered or otherwise interfered with so as not to reflect the voter’s intention.  An envelope containing a ballot paper is to be included unless the AEO is satisfied that the envelope has been fraudulently altered. 

 

At proposed subsections 41AB(11) and 41AB(13) the AEO must deal with the ballot papers or envelopes containing ballot papers and advise the Electoral Commissioner of the conclusions they have reached. 

 

Proposed subsections 41AB(14) and 41AB(15) set out a special requirement on the AEO to be responsible for the safe custody of the materials and store them until directed by the Electoral Commissioner that the materials may be destroyed.  These subsections protect the materials in the same way as other referendum documents are protected under section 142A.

 

Amendments 12 and 13

 

These amendments omit the operation of proposed new section 41AB to voting in Antarctica.

 

Amendment 14

 

This amendment inserts an offence with a penalty of six months’ imprisonment for an officer who does an act which results in the unlawful destruction of, taking of, opening of, or interference with a ballot box or a ballot paper.  “Officer” is defined to include a broad range of roles in section 3 of the Referendum Act.  This offence is being inserted in response to a recommendation made by the Joint Standing Committee on Electoral Matters and is drawn in form from the existing offence at paragraph 130(1)(g) of the Referendum Act.