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Commonwealth Electoral Amendment Bill 2016

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2013-2014-2015-2016

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Finance and Special Minister of State, Senator the Hon Mathias Cormann)



COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

GENERAL OUTLINE

The Commonwealth Electoral Amendment Bill 2016 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) to improve the Senate voting system, require that there be unique registered officers for federally registered parties, and allow for political party logos to be printed on ballot papers.

The Bill proposes to:

·          reduce the complexity of the Senate voting system, by providing for partial optional preferential voting above the line, including the introduction of advice on the Senate ballot paper that voters number, in order of preference, at least six squares;

  • provide appropriate vote savings provisions to capture voter intent and reduce the risk of increased vote informality, including by improving vote savings provisions for below the line voting;
  • improve transparency around the allocation of preferences in a Senate election, by abolishing group and individual voting tickets, noting that this does not change other provisions relating to candidates nominating to be grouped on the Senate ballot paper;
  • introduce a restriction that there be a unique registered officer and deputy registered officer for a federally registered party; and

·          reduce the confusion that may arise with political parties with similar names, by allowing party logos to be printed on ballot papers for both the House of Representatives and the Senate.

The Bill responds to key elements of the first interim report and the final report of the Joint Standing Committee on Electoral Matters (JSCEM) inquiry into the 2013 Federal Election, which were tabled on 9 May 2014, and 15 April 2015, respectively.

The JSCEM identified that the current Senate voting system, as provided for in the Electoral Act, lacks transparency, is overly complex, and needs simplification. The current ballot paper encourages above the line voting, with voter preferences distributed through a complex and opaque system of individual and group voting tickets. The JSCEM concluded that most voters are unlikely to understand, where their preferences flow when they vote above the line.

To provide confidence to voters that their vote goes to the intended candidate, the Bill will introduce partial optional preferential voting above the line, providing advice printed on the Senate ballot paper that voters number at least six squares in order of preference (except where there are six or fewer squares above the line), together with appropriate savings provisions. The Bill will also empower voters, returning control of their preferences to them, by abolishing individual and group voting tickets. Together, these amendments will improve transparency and simplify the Senate voting system, thereby improving the franchise, and supporting the democratic process.

To provide confidence to voters that registered parties have independent identities, the Bill proposes to improve the registered officer requirements for political parties. The potential for an individual to establish multiple parties on the basis of single issues, with the primary purpose of harvesting preferences, as noted by the JSCEM, erodes the democratic process. The Bill seeks to improve accountabilities around these types of affiliations and alliances by removing the capacity for an individual to be a registered officer or deputy registered officer of multiple federally registered political parties.

To provide confidence to voters that they can easily identify the party of their preference, the Bill proposes to allow for party logos to be printed on the Senate and House ballot papers. The JSCEM considered the confusion that arises when political parties with similar names appear on ballot papers, which may result in the true intent of the voter not being reflected in the outcome. The Bill proposes to overcome this issue by enabling the registration of logos by political parties and introducing the option for the reproduction of logos, in black, on ballot papers.

FINANCIAL IMPACT STATEMENT

In the context of the Australian Electoral Commission’s (AEC) constitutional and legal obligations to undertake elections, it is not possible to accurately estimate the total cost of any election in advance. In relation to this legislation, it will be necessary to undertake an appropriate education and awareness campaign, so that the change is widely and properly understood, and to upgrade the AEC’s electronic systems that assist in processing the counting of ballots and the allocation of preferences in Senate elections.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in the Bill and assesses that the amendments are compatible with Australia’s human rights obligations. A copy of the statement of compatibility with human rights is at Attachment A.

 

 



COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

NOTES ON CLAUSES

Clause 1 Short title

Clause 1 specifies the short title of the Act as the Commonwealth Electoral Amendment Act 2016.

Clause 2 Commencement

Clause 2 sets out when the Bill’s provisions will commence. The table specifies that the whole Bill will commence the day after the Bill receives the Royal Assent.

Clause 3 Schedules

Clause 3 provides that an Act that is specified in a Schedule is amended or repealed as set out in that Schedule, and any other item in a Schedule operates according to its terms. There is one Schedule to the Bill, which provides for amendments to the Commonwealth Electoral Act 1918.



Schedule 1 - Amendments

All amendments in Schedule 1 are to the Commonwealth Electoral Act 1918 (the Electoral Act).

 

Part 1 - Senate voting

 

Commonwealth Electoral Act 1918

 

Item 1 Subsection 4(1)

This item inserts definitions in subsection 4(1) of:

·       ‘above the line’, which refers to a square printed in accordance with subparagraph 210(1)(f)(ii) (see item 6); and

·       ‘dividing line’ to refer to the line on the paper that separates the voting method described in subsection 239(1) (above the line voting) from the voting method described in subsection 239(2) (below the line voting).

Item 2 Paragraph 169(4)(b)

Item 3 Subsection 169(4)

Item 4 Subsection 169(4)

These items amend subsection 169(4), which relates to the printing of political party names, and composites of political party names, for groups of candidates on Senate ballot papers. This subsection allows names, or a composite name, to be printed adjacent to the square printed in relation to the group.

The relevant amendments:

·       repeal and substitute paragraph 169(4)(b) (item 2) so that it refers to candidates that have made a request under section 168 that their names be grouped for the election. The previous reference to candidates who propose to have a group voting ticket registered has been removed, given the abolition of group voting tickets (see item 9);

·       clarify that a request, referred to in subsection 169(4), is made under subsection 169(1) (item 3); and

·       update the reference ‘to above the group in accordance with subsection 211(5)’ to ‘above the line in relation to the group’ (item 4), to reflect the repeal of subsection 211(5) (see item 9) and the new definition in subsection 4(1) (see item 1).

Item 5 Paragraphs 195A(5)(b) and (c)

This item amends paragraphs 195A(5)(b) and (c), which relate to the procedures for handling postal vote certificates received by a mobile polling team leader. Subsection 195A(5) currently provides for an envelope containing a postal vote to be placed and kept in a ballot box, which is then forwarded to the designated Assistant Returning Officer, with the record from the mobile polling team leader. The amendments will require the ballot box in which the postal votes have been placed and the record to be forwarded to the designated Divisional Returning Officer, rather than the Assistant Returning Officer.

Item 6 Paragraph 210(1)(f)

This item repeals and substitutes paragraph 210(1)(f). New paragraph 210(1)(f) provides that, in printing the ballot papers to be used in a Senate election, except as otherwise provided by the regulations:

·       a square must be printed opposite the name of each candidate (new subparagraph 210(1)(f)(i)). This is for candidates below the line. This content remains the same as in the repealed paragraph; and

·       for candidates who made a request under section 168, that their names be grouped for the election, a square must be printed above the dividing line and above the squares printed opposite those names (subparagraph 210(1)(f)(ii)). This provision is to ensure that squares can continue to be printed above the line in relation to a group of candidates. Subsection 211(5), which will be repealed (see item 9), provides for a square to be printed above the line only where a group of candidates had a group voting ticket.

Item 7 Subsection 210(2)

This item repeals subsection 210(2), which relates to individual voting tickets, as it is no longer required (see item 9).

Item 8 Subsection 210A(5)

This item amends subsection 210A(5), which concerns the printing of party names on ballot papers adjacent to squares above the line, to replace a reference to subsection 211(5), which will be repealed (see item 9), to ‘above the line’ as a result of a new subparagraph 210(1)(f)(ii) (see item 6).

Item 9 Section 211 and 211A

This item repeals section 211, which provides for group voting tickets, and section 211A, which provides for individual voting tickets, as these are no longer required.

Item 10 Paragraphs 214(2)(d) and (e)

This item amends paragraphs 214(2)(d) and (e), which refer to the printing of party names and composite names formed from party names as being adjacent to the square printed above the line. The amendments replace a reference to subsection 211(5), which will be repealed (see item 9), with ‘above the line’ (see item 6).

Item 11 Section 216

This item repeals section 216, which provides for the display of group voting tickets at polling booths, as it is no longer required.

Item 12 Subsection 226(3)

This item repeals subsection 226(3), which requires the display of group voting tickets to patients in hospitals that are polling places, as it is no longer required.

Item 13 Subparagraph 227(8)(a)(i)

This item amends subparagraph 227(8)(a)(i), which relates to materials provided to mobile polling teams, to omit a reference to group voting tickets registered for the purposes of the election.

Item 14 Subsection 227(10)

This item amends subsection 227(10) to require ballot boxes, which have been used for mobile polling, to be forwarded for the purposes of scrutiny to the Divisional Returning Officer rather than to the Assistant Returning Officer.

Item 15 Subsection 228(1)

This item amends subsection 228(1) to require a presiding officer of a polling place to forward ballot boxes with declaration votes to the Divisional Returning Officer rather than to the Assistant Returning Officer.

Item 16 Subsection 228(2)

This item repeals subsection 228(2), which specifies the action that Assistant Returning Officers are required to take when they receive ballot boxes with declaration votes. Subsection 228(2) is no longer required as the Divisional Returning Officers will be required to perform those actions (see item 17).

Item 17 Subsection 228(3)

This item repeals and substitutes a new subsection 228(3) to enhance the security and handling of the declaration votes by Divisional Returning Officers, requiring the particulars on declaration envelopes to be compared with relevant records, with discrepancies to be reported to the Australian Electoral Officer. The amendments also specify procedures for the secure handling of the envelopes containing the declaration votes.

Item 18 Subsection 235(8)

This item amends subsection 235(8) to require the Divisional Returning Officer, rather than the Assistant Returning Officer, to deal with provisional votes, which have been placed in an envelope in a ballot box. This will enhance the security of handling the declaration votes.

Item 19 Before subsection 239(1)

This item inserts a heading ‘Voting below the line’, before subsection 239(1).

Item 20 Subsections 239(2) and (3)

This item repeals subsections 239(2) and (3) and substitutes a new subsection 239(2), which is headed ‘Voting above the line’. New subsection 239(2) provides that a vote may be marked on a ballot paper by writing at least the numbers one (1) to six (6) in the squares printed on the ballot paper in accordance with subparagraph 210(1)(f)(ii) (see item 6), or, if there are six or fewer squares above the line, numbering the squares consecutively from the number one (1). Form E - the Senate ballot paper - will reflect subsection 239(2).

If a voter numbers fewer than six squares, the new subsection 269(1) will operate to save the vote from informality (see item 23).

This item also inserts a new heading, ‘Candidates who die before polling day’, before subsection 239(4) to alert readers to its content.

Item 21 Subsection 260(5)

This item amends subsection 260(5), which relates to the result of polling in Antarctica, to remove a reference to subsection 273(4), which will be repealed (see item 29).

Item 22 Section 269 (heading)

This item repeals and substitutes the heading for section 269, ‘Formal votes according to group voting ticket’, so that it no longer refers to group voting ticket and reads ‘Formal votes above the line’. This is to reflect that voting above the line will no longer be according to group voting tickets.

Item 23 Subsection 269(1)

This item repeals and substitutes a new subsection 269(1). Under a new paragraph 269(1)(a), a ballot paper in a Senate election is not informal if the voter has marked numbers on the ballot paper above the line in accordance with subsection 239(2). The new paragraph 269(1)(b) provides that, a ballot paper in a Senate election is not informal if the voter has marked the number one (1), or the number one (1) and one or more higher numbers, in the squares printed above the line.

New paragraph 269(1)(b) will operate with the new subsection 239(2), which provides for voters to number at least six squares above the line. The Senate group ticket voting system has been in place since 1984, requiring that voters number only one square above the line. Since then, a very large majority of voters have followed the practice of numbering only one square above the line. It is important that voters who continue to number only one square above the line, even though contrary to the new subsection 239(2), should not have their votes treated as informal: they have expressed a clear choice albeit one that might not give their vote a long life in preference distribution.  Paragraph 269(1)(b) is designed to give effect to that choice.

A new subsection 269(1A) provides that a voter who marks only a single tick or cross in a square above the line is taken as having written the number one in the square. It further provides for the saving of votes with repeated or missing numbers, in accordance with the following examples.

Repeated numbers: a voter places the following sequence of numbers above the line: 1, 2, 3, 3, 4, 5, 6. Section 269 will effectively provide for the vote to be treated as formal and as a ‘1, 2’ vote. Because the voter has not expressed a clear choice for his or her third preference, the marks ‘3’, ‘3’, ‘4’, ‘5’, ‘6’) are all disregarded.

Missing numbers: a voter who marks the ballot paper above the line as follows: 1, 2, 3, 5, 6. The voter has not expressed a clear choice for his or her fourth preference: no square was marked with the number ‘4’ and it cannot be safely assumed that the square marked ‘5’ was the voter’s fourth preference. Section 269 will effectively provide for the vote to be treated as formal and as a ‘1, 2, 3’ vote. The ‘5’ and ‘6’ marks are disregarded.

These provisions are designed to minimise vote informality, and maximise the realisation of voter choice, in the introduction of a new Senate voting system.

This item inserts a new heading ‘Votes that are formal both above and below the line’ at the end of subsection 269(1A) to provide further clarity on the application of formality where a ballot is marked, both above and below the dividing line.

Item 24 Subsection 269(2)

This item amends subsection 269(2) to include references to paragraph 269(1)(b). The effect of this inclusion is that if a ballot paper has been marked above the line with the number one (1), or the number one (1) and one or more higher numbers (disregarding any repeated or missing numbers), and has been marked below the line in accordance with 239(1)(a), in a manner that would not make it informal, the ballot paper is deemed to be only marked below the line. This is consistent with the existing provisions that treat a vote marked both above and below the line as a vote below the line.

Item 25 Subsections 269(3) and (4)

This item repeals subsections 269(3) and (4), which preclude those votes where a voter marked more than one square above the line (with the number one (1) or a tick or cross) from being considered to be according to a group voting ticket. These subsections are no longer required.

Item 26 Section 270 (heading)

This item repeals and substitutes the heading for section 270, ‘Certain votes with non-consecutive numbers to be formal’ with ‘Certain votes below the line with non-consecutive numbers to be formal’, so that it makes clear that the formality provisions in section 270 relate only to voting below the line.

Item 27 Subparagraph 270(1)(b)(i)

This item amends subparagraph 270(1)(b)(i) to allow, in particular circumstances, no  more than five (5) changes to numbers marked in squares below the line on a Senate ballot paper for the vote to not be informal. Subparagraph 270(1)(b)(i) currently provides that no more than three (3) changes are allowed.

For such a ballot paper to not be informal, it must be marked in squares below the line with a sequence of consecutive numbers starting with one, with changes to no more than five (5) numbers below the line to be in such a consecutive sequence.

However, for the allowance of five changes to occur, there must be more than nine candidates below the line and not less than 90 per cent of the squares opposite to the names of the candidates must be numbered.

Where such a ballot paper is identified, the number one (1) is taken to be the voter’s first preference and the voter is taken to have expressed consecutive preferences by the other numbers.



 

Item 28 Section 272

This item repeals and substitutes a new section 272, which specifies the treatment of Senate ballot papers of voters who have voted above the line. Under new section 272, if a ballot paper is marked above the line by writing at least one to six (in accordance with new subsection 239(2)) or the voter has marked number one (1), or number one and one or more higher numbers (in accordance with new paragraph 269(1)(b)), and numbers written are not to be disregarded under new paragraph 269(1A)(b)), the ballot paper is taken to have been marked as follows:

·       each candidate in a preferenced group was given a different number starting from one;

·       candidates in a preferenced group were numbered consecutively, starting with the candidate whose name is at the top of the group to the candidate whose name is at the bottom;

·       the order in which candidates in different preferenced groups are numbered is worked out by reference to the order in which the groups were numbered on the ballot paper, starting with the group marked 1; and

·       when all the candidates in a preferenced group have been numbered, the candidate whose name is at the top of the next preferenced group is given the next consecutive number.

It is expected that many voters will now vote ‘1, 2, 3, 4, 5, 6’ above the line. If each of the six groups numbered by the voter had eight candidates, section 272 would treat the ballot paper as having 48 numbers below the line. The number ‘1’ would be assigned to the first candidate in the ‘1’ group; the number ‘2’ would be assigned to the second candidate in the ‘1’ group. The number ‘8’ would be assigned to the final candidate in the ‘1’ group and the number ‘9’ would then be assigned to the first candidate in the ‘2’ group.

Thus, where a voter places ‘1’ above a group, their vote will be a first preference vote for the first candidate in that group. If that candidate is excluded in the distribution of preferences, the vote is transferred to the next candidate who is alive in the preference distribution. This might be a candidate placed lower in that group but would more usually mean the vote is transferred to the next group in the voter’s preference (2, 3, 4, 5 or 6), which has candidates still alive in the distribution.

Thus, the voter controls the course by which their vote is transferred upon preference distribution. Since 1984 the distribution of preferences has been done pursuant to ticket arrangements in a manner almost entirely unknown to most voters.

Item 29 Subsections 273(2) to (6)

This item repeals subsections 273(2) to (6), which specify procedures that need to be followed in relation to the scrutiny of Senate votes, and inserts new subsections 273(2) to (4). The effect of these provisions remains largely unchanged, with the following exceptions:

·       there will no longer be requirements to reject informal Senate ballot papers or count first preference votes prior to transmission to the Australian Electoral Officer. The role of presiding officers will be to count ballot papers (without inspecting them) and record that number and the role of Divisional Returning Officers will be to check that the count of the ballot papers was accurate;

·       there will no longer be a requirement to place ballot papers in ‘parcels’, in view of the fact that no rejection of informal ballot papers or counting has occurred. The requirement will be to seal up the ballot papers in a ‘securely fastened container’ and endorse on each container a description of its contents;

·       the securely fastened containers are to be sent to the Australian Electoral Officer for the State that includes the Division as soon as practicable, together with statements made out by the Divisional Returning Officer; and

·       the provision specifies the actions that an Australian Electoral Officer must take when ballot papers have been received. This includes scrutinising all ballot papers received; rejecting any informal ballot papers; and making and keeping a record of the preferences on the ballot papers that have been received, including informal ballot papers and formal ballot papers that are not sequentially numbered.

Item 30 Subsection 273(19)

This item repeals and substitutes a new subsection 273(19) so that it reflects that sealed ‘containers’ rather than ‘parcels’ are to be used to transmit ballot papers (see item 29).

Item 31 Subsections 273A(2)

Item 32 Subsections 273A(3)

Item 33 Subsection 273A(4)

Item 34 Subsection 273A(6)

Item 35 After subsection 273A(6)

Item 36 Paragraph 273A(7)(a)

Item 37 Paragraphs 273A(7)(c) to (e)

Item 38 Subsection 273A(10)

These items amend section 273A, which specifies the method for computerised scrutiny of votes in a Senate election. Amendments are made to:

·       repeal subsections 273A(2) and (3) (items 31 and 32), which refer to processing of ballot papers by Assistant Returning Officers and Divisional Returning Officers, to provide consistency with amended section 273, and rather specify that votes are provided to the Australian Electoral Officer under subsection 273(3)(d) (item 33). This provides consistency with the changes made to section 273 (see item 29);

·       insert ‘section 273 and’ to provide clarity as to the provisions to be relied upon for scrutiny proceedings (item 34);

·       insert new subsection 273A(6A) (item 35), which requires the Australian Electoral Officer to make, sign and keep a copy of a statement setting out the number of ballot papers scrutinised using a computer;

·       clarify paragraph 273A(7)(a) (item 36) to replace the term ‘parcels’ with ‘containers’ in view of the amendments to section 273 (see item 29);

·        repeal and substitute paragraphs 273(7)(c) to (e) (item 37) to reflect that ‘containers’ rather than ‘parcels’ are to be used to place ballot papers in (see item 29);

·       repeal subsection 273A(10) (item 38). As the definitions of ‘above the line’ and ‘dividing line’ are in subsection 4(1) (see item 1), subsection 273A(10) is no longer required.

Item 39 Subsection 282(4)

This item amends subsection 282(4), which deals with recounts of Senate votes, to specify that those ballot papers that are marked in accordance with new subsection 269(1)(b) and marked in another way that would make them informal, are to be treated as though they are only marked in accordance with subsection 269(1)(b) (see item 23).

Item 40 Subsection 393A(2)

This item amends subsection 393A(2), which refers to the custody of ballot papers transmitted in accordance with current paragraph 273(5)(f), so that it refers to paragraph 273(3)(d), in view of the amendments to section 273 (see item 29).

Item 41 Form E in Schedule 1

This item updates Form E (section 209) to reflect the new requirements under new subsection 239(2) to place at least the numbers one to six in the squares above the line, in order of choice (see item 20), and to permit the printing of party logos (see item 90). The instruction to be printed on the Senate ballot paper will use the term “boxes” as a synonym for “squares” to align with the terminology with the current and established term used in the instructions that appear on House of Representatives ballot papers.

The instruction to number at least six boxes above the line does not account for a voter’s ability, under the new section 269, to number fewer than six boxes. The principal requirement in amended section 239 is to number at least six squares. This requirement is considered to be an appropriate direction to voters to ensure that their vote has a reasonable life upon the distribution of preferences.

The ability to number fewer than six squares is a savings provision to ensure that voters are not disadvantaged by following the practice since 1984 of marking only ‘1’ in one square above the line. Such votes should not be ruled informal; they express a clear voter choice. But the Senate ballot paper instructions will adopt the principal requirement in amended section 239, designed to give a reasonable life to an individual’s vote on preference distribution, to number at least six squares.

Item 42 Form F in Schedule 1

This item updates Form F (section 209) to reflect the new provision allowing for the inclusion of party logos on ballot papers under new subsection 214A(4) (see item 89).

 



 

Part 2 - Registered officers and deputy registered officers

Commonwealth Electoral Act 1918

 

Division 1 - Amendments

Item 43 At the end of subsection 4C(1)

This item inserts a new note under subsection 4C(1), which concerns references in the Electoral Act to the registered officer of a registered political party, to alert readers to the requirement that a person must not be the registered officer or a deputy registered officer of more than one party under new subsection 126(2B) (see item 52).

Item 44 Paragraph 4C(3)(a)

Item 45 At the end of paragraph 4C(3)(a)

Item 46 Paragraph 4C(3)(b)

Item 47 After paragraph 4C(3)(b)

These items amend subsection 4C(3) to:

·       modernise drafting in paragraphs 4C(3)(a) and 4C(3)(b) to replace ‘shall’ with ‘must’;

·       insert an ‘and’ at the end of paragraph 4C(3)(a) to improve clarity; and

·       require that a person who is nominated as a deputy registered officer include a declaration that he or she does not contravene new subsection 126(2B) (see item 52) by accepting the nomination.

Item 48 At the end of section 4C

This item inserts a new subsection 4C(4) to provide that the nomination of a deputy registered officer of a party is invalid if the person nominated contravenes new subsection 126(2B) (see item 52) by accepting the nomination.

Item 49 Before subsection 126(1)

Item 50 Before subsection 126(2)

Item 51 Before subsection 126(2A)

These items insert new headings ‘Who may make an application’, ‘Requirements for an application’, and ‘A person must not be a member of more than one registered political party’ before subsections 126(1), 126(2) and 126(2A) respectively, to alert readers to their content. These subsections have not been amended.

Item 52 After subsection 126(2A)

This item inserts new subsections 126(2B) and 126(2C).

The item inserts a heading ‘A person must not be a registered officer etc. of more than one registered political party’ before the new subsections.

New subsection 126(2B) provides that a person must not, at a particular time, be the registered officer of more than one party, a deputy registered officer of more than one party, or the registered officer of one party and a deputy registered officer of another party. This is consistent with recommendation 4 in the Joint Standing Committee on Electoral Matters’ Interim report on the inquiry into the conduct of the 2013 Federal Election , that there be unique registered officers for federally registered parties.

New subsection 126(2B) also provides that the registration of a party is not to be cancelled because of subsection 126(2B) unless the Electoral Commission has taken action to determine whether the party should be registered because of new paragraph 137(1)(cc) (see item 56).

A note is also included under new subsection 126(2B) to alert readers that the registered officer of a party may be changed at any time, as provided for under paragraph 134(1)(g).

New subsection 126(2C) provides that new subsection 126(2B) does not prevent a person being both the registered officer or a deputy registered officer of a party for the purposes of the Electoral Act, and the registered officer or a deputy registered officer (however described), for the purposes of an Act of a State or Territory, or Ordinance of an external Territory, of a political party or a branch of a political party. This subsection ensures that it is clear that the restriction on being multiple relevant registered officers is only for the purposes of the Electoral Act.

It also inserts a new heading ‘Electoral Commission to deal with application’ prior to subsection 126(3).

Item 53 At the end of subsection 131(1)

This item inserts a new note under subsection 131(1) concerning variations of an application for registration of an eligible political party. The note alerts readers to the possibility that an application could be varied to change the registered officer of a party so that subsection 126(2B) is not contravened.

Item 54 At the end of subsection 134(1)

This item inserts a new note under subsection 134(1). Subsection 134(1) allows for applications to change the Register of Political Parties in respect of a registered political party, including substituting the name of the registered officer entered in the Register with the name of a person specified in the application. The note alerts readers to the requirement in subsection 126(2B) that a person must not be the registered officer or a deputy registered officer for two or more parties (see item 52).

Item 55 Paragraph 134(4)(c)

This item amends paragraph 134(4)(c), which specifies how applications to change the Register of Political Parties to change a party name or its abbreviation, or to register such an abbreviation, are to be treated. Subsection 134(4) includes a requirement for the Electoral Commission to publish a notice, which invites persons who do not believe a relevant application is in accordance with section 126, to submit written particulars of the grounds for that belief. The amendment to paragraph 134(4)(c) specifies that a belief that the application is not in accordance with subsection 126 is to exclude any such belief about accordance with subsection 126(2B) (see item 52).



 

Item 56 After paragraph 137(1)(cb)

This item inserts a new paragraph 137(1)(cc). Subsection 137(1) requires the Electoral Commission to give the registered officer of a relevant party written notice that it is considering deregistering the party, setting out the reasons for considering doing so. New paragraph 137(1)(cc) provides an additional ground on which the Electoral Commission can consider deregistering a party, namely, that a person who is the registered officer or a deputy registered officer of a registered political party contravenes subsection 126(2B) (see item 53).

Division 2 - Application provisions

Item 57 Application of amendments relating to registered officers and deputy registered officers

This item specifies the application of amendments in Division 1.

Subitem 57(1) provides that the amendments of section 4C of the Electoral Act (see items 43 to 48) apply in relation to any nominations made after commencement of the item (that is, on the day after the Bill receives the Royal Assent).

Subitem 57(2) provides that the amendments of section 126 (see items 49 to 52) apply in relation to any registered political party after commencement (the day after the Bill receives the Royal Assent). This includes those political parties who were registered before or after this item commences. A note is included under this subitem to alert readers that, under subitem 57(4), a political party that, at commencement, has a registered officer or deputy registered officer who contravenes subsection 126(2B) has 90 days to change that officer.

Subitem 57(3) provides that the amendments of section 134 of the Electoral Act (see items 54 and 55) apply in relation to any application made after commencement (that is, on the day after the Bill receives the Royal Assent).

Subitem 57(4) provides that that the amendments of section 137 (see item 56), apply:

·       in relation to any political party registered after commencement - after commencement (on the day after the Bill receives the Royal Assent); and

·       in relation to any political party registered before this item commences - on and after the 90th day after commencement.

Subitem 57(5) provides, to avoid doubt, that subitem 57(4) does not allow the Electoral Commission to deregister a political party in contravention of section 127 of the Electoral Act. Section 127 prohibits action from being taken in relation to any application for the registration of a political party during the election period (commencing on the day of the issue of the writs and ending on the day the writs are returned).



Part 3 - Party logos

 

Commonwealth Electoral Act 1918

 

Division 1 - Amendments

Item 58 At the end of paragraph 126(2)(a) and (b)

Item 59 After paragraph 126(2)(b)

Item 60 At the end of paragraphs 126(2)(c) to (d)

These items amend subsection 126(2) by:

·       inserting a new paragraph 126(2)(ba), which allows for an application for the registration of an eligible political party to set out a copy of a logo that the party wishes to be entered in the Register of Political Parties; and

·       inserting an ‘and’ at the end of paragraphs 126(2)(a), (b), (c) and (d) to improve clarity.

Item 61 After subsection 126(2)

This item inserts new subsections 126(2AA) and (2AB), which specify particular requirements for logos to be provided as part of an application for the registration of an eligible political party.

New subsection 126(2AA) provides that a logo set out in such an application must be in black and white and meet any other requirements determined by the Electoral Commissioner. The limitation to black and white is included in view of the fact that House of Representatives ballot papers are green, and anything other than black printing may be illegible. New subsection 126(2AB) allows the Electoral Commissioner to determine other requirements by legislative instrument.

Item 62 At the end of subsection 126(3)

This item inserts a note at the end of subsection 126(3). Subsection 126(3) requires the Electoral Commission, upon receipt of an application for registration of a political party, to deal with the application in accordance with Part XI of the Electoral Act and determine whether the party can be registered. The note alerts readers to the fact that the Electoral Commission may also decide under new section 129A to refuse to enter a logo of the political party in the Register of Political Parties (see item 63). One important ground of refusal is where a logo so nearly resembles the logo of any other person (for example, it is the logo of a business or another political party) that it is likely to be confused with or mistaken for that logo.

Item 63 After section 129

This item inserts a new section 129A, titled ‘Certain party logos not to be entered in the Register’, which identifies the criteria by which the Electoral Commission may refuse to enter an applicant’s logo in the Register of Political Parties. The criteria for refusal are similar to those that are currently applied by the Electoral Commission in respect of party names and abbreviations, and are mainly intended to avoid creating confusion for voters.



 

Item 64 Subsection 131(1)

This item amends subsection 131(1), which requires the Electoral Commission to give written notice of an opinion that it might be prepared to vary an application to register a political party which it would otherwise refuse. This subsection has been expanded to include a requirement for the Electoral Commission to give such written notice in relation to the refusal to enter a logo of the party in the Register of Political Parties.

Item 65 Paragraph 132(2)(b)

This item repeals paragraph 132(2)(b), which provides the requirements of a notice under subsection 132(1) relating to an application for registration to include an invitation to any person that considers an application for registration is non-compliant to provide particulars, and inserts a new paragraph 132(2)(b) that improves clarity on this process and includes reference to new section 129A (see item 63) relating to the registration of a party logo.

Item 66 Paragraph 132A(1)(a)

This item amends paragraph 132A(1)(a), which requires the Electoral Commission to give parties to an application to register a political party written notice of the reasons for its decision not to register the party concerned. This paragraph has been expanded to include a requirement for the Electoral Commission to give such written notice where it has decided to refuse to enter a logo of the party in the Register of Political Parties.

Item 67 At the end of subparagraphs 133(1)(a)(i) and (ii)

Item 68 After subparagraph 133(1)(a)(ii)

Item 69 At the end of subparagraphs 133(1)(a)(iv)

Item 70 At the end of paragraph 133(1)(b)

These items amend paragraph 133(1)(a) by inserting:

·       a new subparagraph 133(1)(a)(iia), which requires the Electoral Commission to enter the logo of the party in the Register of Political Parties where it has determined that the party should be registered, and has not decided to refuse to enter the logo in the Register; and

·       an ‘and’ at the end of subparagraphs 133(1)(a)(i),(ii) and (iv) and paragraph 133(1)(b) to improve clarity.

Item 71 Paragraph 133(1)(c)

Item 72 Subsection 133(3)

These items amend section 133, which specifies the procedure that needs to be followed where the Electoral Commission has determined that a political party should be registered, or has determined that an application should be refused. These items:

·       amend subsection 133(1)(c), which requires to the Electoral Commission to give written notice to persons who provided particulars of the ground for their belief that an application for registration of a party was non-compliant, of the registration of party. This paragraph has been expanded to include a requirement to provide such written notice to a relevant party when the Electoral Commission has entered a logo in the Register of Political Parties;

·       repeal and substitute subsection 133(3). New subsection 133(3) requires the Electoral Commission to give written notice to an applicant or applicants who have had their application for the registration of a political party refused, setting out reasons for the refusal. This section has been expanded to include a requirement to provide such written notice if the Electoral Commission refuses to enter a logo of the political party in the Register of Political Parties.

Item 73 At the end of paragraphs 134(1)(c) to (e)

This item inserts an ‘or’ at the end of paragraphs 134(1)(c), (d) and (e) to improve clarity.

Item 74 After paragraph 134(1)(e)

Item 75 Subsection 134(4)

Item 76 Paragraph 134(6)(c)

Item 77 Paragraph 134(8)(a)

These items amend section 134, which specifies the method by which changes to the Register of Political Parties are made. Amendments are made to:

·       insert a new paragraph 134(1)(ea) to allow for an application to be made to change the party’s logo entered in the Register to a logo set out in a relevant application (item 74);

·       insert a new paragraph 134(1)(eb) to allow for an application to be made to enter a logo in the Register where no logo is in the Register (item 74);

·       specify the particular treatment of applications made under paragraphs 134(1)(ea) and (eb), which is consistent with similar types of applications including those to change a party name or abbreviation (item 75);

·       require the Electoral Commission, where it has granted an application to enter or change a logo in the Register, or substitute a registered officer, to provide notice to specified persons (item 76); and

·       require the Electoral Commission to notify applicants of its reasons where it refuses to grant an application to enter or change a logo (item 77).

Item 78 Section 134A (heading)

Item 79 Paragraph 134A(1)(a)

Item 80 Paragraph 134A(1)(b)

Item 81 Subparagraph 134A(1)(e)(i)

Item 82 Subsection 134A(2)

Item 83 Subsection 134A(3)

These items amend section 134A, which provides for objections to the continued use of names, so that it also applies to the continued use of logos. Amendments are made to:

·       change the heading to include the words ‘or logo’ to reflect the amendments to the section (item 78);

·       repeal paragraph 134A(1)(a) and substitute with new paragraphs 134A(1)(a) and (aa) to allow the registered officer of a party to object to the continued use of a logo by a later registered party in certain circumstances. The provision remains unaltered in its effect for objections to the continued use of a party name (item 79);

·       update other provisions relating to objections in paragraph 134A(1)(b), subparagraph 134A(1)(e)(i) and subsection 134A(2) to include logos in addition to names (items 80 to 82); and

·       insert a definition of ‘logo’ into subsection 134A(3), which means the logo of a registered political party that is entered in the Register of Political Parties (item 83).

Item 84 Paragraph 137(1)(ca)

Item 85 Paragraph 137(1)(ca)

These items amend paragraph 137(1)(ca) to include references to logos. These inclusions mean that where an objection is made and upheld against the continued use of a logo by a political party, but an application to change the party’s logo has not been made or has been refused, the Electoral Commission must give notice that it is considering deregistering the party.

Item 86 Subsection 141(1) (after paragraph (b) of the definition of reviewable decision)

This item amends the definition of ‘reviewable decision’ in subsection 141(1) to include decisions of the Electoral Commission (or a delegate of the Electoral Commission) to enter or refuse to enter a logo of a political party on the Register of Political Parties. A reviewable decision is subject to specified processes, including review by the Administrative Appeals Tribunal.

Item 87 Subsection 169B(2)

This item amends subsection 169B(2) to specify that for the purposes of section 214A (see item 89), there is particular treatment for the purposes of that section where a person is taken to have been endorsed as a candidate in an election by more than one registered political party.

Item 88 At the end of subsection 209(3)

This item inserts a new note under subsection 209(3), which requires ballot papers to be printed using black ink, to alert readers that one effect of the subsection is that party logos are only printed in black on the ballot paper.

Item 89 After section 214

This item inserts new section 214A, titled ‘Printing of party logos on ballot papers’, which specifies the requirement for the printing of registered party logos on ballot papers where the party has requested that the logo be used.

Under subsection 214A(2), the ballot paper for a Senate election must have the logo printed adjacent to the square above the line that appears in accordance with paragraph 214(2)(d), adjacent to the name of the party.



 

Under subsection 214A(3), where candidates, endorsed by more than one political party, have made a request to appear as a group above the line, no more than two logos may be printed. Where more than two of those parties have logos registered with the Electoral Commission, the parties must notify the Electoral Commission which of the logos is to be printed.

Subsection 214A(4) provides that the ballot paper for a House of Representatives election must have the logo printed in accordance with Form F in Schedule 1.

Under subsection 214A(5), all logos of registered political parties must be printed on the ballot paper in a uniform size and format.

Item 90 Section 366

This item repeals and substitutes section 366, which prohibits the Court of Disputed Returns from declaring that a person returned as elected was not duly elected, or declare an election void, due to errors relating to printing of party affiliations. The new section has been expanded to include errors relating to the printing of party logos.

Item 91 After section 386

This item inserts a new section 386A, which provides an immunity from action, suit or proceeding in relation to anything done in good faith by the Electoral Commission (or an officer or employee of the Commonwealth or the Electoral Commission) under the Electoral Act in relation to a logo of a party.

Item 92 Form CA in Schedule 1

Item 93 Form CC in Schedule 1

Item 94 Form DA in Schedule 1

These items amend nomination forms CA, CC and DA in Schedule 1 to the Electoral Act, to include the capacity for nominees to indicate whether they wish the logo of a registered political party to appear on the ballot paper.

Division 2 - Application provision

Item 95 Application of amendments

This item provides that the amendments made by Part 3 of the Bill relating to logos apply after commencement of the item (that is, on the day after the Bill receives the Royal Assent) in relation to any registered political party (whether registered before or after commencement of the item).



 

Attachment A

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

Commonwealth Electoral Amendment Bill 2016

The Commonwealth Electoral Amendment Bill 2016 (the 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 amends the Commonwealth Electoral Act 1918 (the Electoral Act) to increase transparency, reduce complexity and improve the governance of the current electoral system, through providing voters with greater clarity and support of the democratic process. The Bill amends the Electoral Act by:

·       implementing a partial optional preferential voting system above the line for Senate elections, including instructing voters to vote for at least six parties or groups in their order of preference;

·       removing the individual and group voting tickets;

·       removing the ability of an individual to be the registered officer or deputy registered officer of multiple political parties (registered under the Electoral Act) at the same time; and

·       providing for the printing of political party logos on ballot papers.

Human Rights Implications

This item Bill engages the right to take part in public affairs and elections, as contained in article 25 of the International Covenant on Civil and Political Rights .

The Bill enforces this right by amending the current Senate voting system to give voters greater control over their vote. By removing the use of group and individual voting tickets, the Bill allows voters to assign their own preferences and prevents abuse of the system through preference deals between candidates and parties.

In addition, the Bill, through removing the ability of an individual to be the registered officer or deputy registered officer of more than one political party, enhances governance and reduces the likelihood of parties being established primarily to harvest preferences.

Finally, by providing for the printing of party logos on ballot papers, the Bill reduces the risk of confusion to voters where parties have similar names, which further cements the voter as the primary determinant in the electoral outcome.

Conclusion

The Bill is compatible with human rights as it seeks to enforce the right to take part in public affairs and elections by improving the current Senate voting system.

 

 

Senator the Hon Mathias Cormann

Minister for Finance and Special Minister of State