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Electoral Amendment (Senate Elections) Bill 1999

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Electoral Amendment (Senate Elections) Bill 1999



Explanatory Memorandum











(Circulated by authority of Senator Colston)


General outline


The Electoral Amendment (Senate Elections) Bill 1999 proposes to alter the way that senators for the States are currently chosen. Section 7 of the Constitution provides, in part, that:


“The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate”.


The Bill provides that each of the States is to be divided into six Wards, each Ward having two representatives in the Senate. At a periodical half-senate election, each Ward would return one senator for that State while at a Senate election following a dissolution, each Ward would return two senators. The Bill does not alter the method of selection of Territory senators. At a Senate election following a dissolution, senators would be chosen using the current system of proportional representation, but at a half-senate election preferential voting, as currently used for House of Representatives elections, would be relied upon. Ticket voting is to be retained for both types of elections in order to minimise the possibility of informal votes where a large number of candidates is involved.


The Bill also makes consequential changes to the administration of the electoral system. The Australian Electoral Officer in each State retains primary responsibility for administration of the Ward system, including the establishment and maintenance of separate Ward Rolls. The Australian Electoral Officer is empowered to make whatever arrangements are necessary to maintain the Rolls. It is envisaged that this would involve administrative arrangements with the Divisional Returning Officers to ensure that information acquired by DROs in the course of their maintenance of Divisional Rolls is passed on to the Australian Electoral Officer for corresponding action in relation to the Ward Rolls.


The Bill also provides for some modifications to the existing forms for nomination for the Senate.


As the expansion of the administrative structure required to administer the Ward system is untested, the Bill provides that the establishment, maintenance and use of Ward Rolls will be reviewed by the Australian Electoral Commission five years after the commencement of the Act and a report of the review will be tabled in both Houses of the Parliament. The interaction of ordinary, absent and provisional voting and the mechanics of declaration vote exchanges will also be reviewed.


The Bill also provides for transitional arrangements. Senators holding office at the commencement of the Act will continue to represent their States as a whole for the remainder of their terms of office. It will be necessary for the initial distribution of all States into Wards to be undertaken as a first step to implementing the system. If a Senate election is held before this distribution process is completed and a 21 day buffer period has elapsed, the transitional provisions provide that senators will be elected in accordance with the current system. Any casual vacancies occurring in relation to the places held by senators representing States as a whole would be filled on the same basis.


There is some argument that section 15 of the Constitution, as changed by the Constitution Alteration (Senate Casual Vacancies) 1977 , entrenches the system of direct elections of senators by the people of a state as a whole. It is not entirely clear whether section 15 precludes the appointment of a person by a State Parliament to represent a Ward, as opposed to the State as a whole. To safeguard against this possibility, the bill provides that a senator appointed to a casual vacancy in a State is deemed to represent the Ward in respect of which the vacancy arose, for the purposes of the Commonwealth Electoral Act 1918 (CEA) (Schedule 1, item 17). This amendment confirms the right of an appointed senator to receive certain information under the CEA.


Notes on individual clauses and items follow.


Financial impact


The financial impact of the Bill has not been quantified.


Notes on clauses


Clause 1 provides for the title of the Act.


Clause 2 provides that the Act will commence on the day on which it receives the Royal assent.


Clause 3 provides that the CEA is to be amended in accordance with the terms of the items in Schedule 1.


Clause 4 provides for a review of the system of Ward Rolls as described above.


Clause 5 provides for the transitional arrangements as described above.


Schedule 1—notes on items


Schedule 1 contains amendments of the CEA.


Item 1 inserts into the definition section of the CEA a definition of “Ward”. Items 2 and 3 amend section 33 of the CEA to provide that an Assistant Returning Officer may be appointed for a Ward or a portion of a Ward and may exercise certain powers of the Australian Electoral Officer in relation to that Ward or portion of a Ward. These powers are analogous to the powers which an Assistant Returning Officer may exercise in relation to a Division.


Items 4 and 5 amend Division 1 of Part III. Existing section 39 of the CEA which provides that the State of Queensland may not make laws pursuant to section 7 of the Constitution dividing the State into Divisions and determining the number of senators to be chosen by each Division is repealed and replaced with two new sections which provide for the distribution of all States into six Wards. Each Ward is to be represented by two senators, one of whom will be chosen at each half-senate election. The prohibition on the State of Queensland enacting similar laws is retained as new subsection 39A(5).


Item 6 is a major amendment which provides for the insertion of a new Part IIIA into the CEA relating to the initial distribution of States into Wards. The amendment also inserts Part IIIB covering redistributions. Initial distributions are to occur in much the same way as the redistribution of States for the House of Representatives currently occurs. There is one important additional proviso, however, which requires the distribution committee to give priority when considering proposed Ward boundaries to the boundaries of existing Divisions in the State. As the electoral map of Australia currently stands, there is only one State where Ward and Divisional boundaries could coincide perfectly and that is in South Australia where there are currently twelve House of Representatives Divisions. Nonetheless, the distribution committees must give due consideration to the alignment of Wards and Divisions in their initial distribution subject, of course, to the numerical criteria set out in paragraph 54B(4)(a). Redistributions are to occur in the same manner as, and immediately after, redistributions for House of Representatives Divisions.


Items 7 and 11 provide for there to be a separate Roll for each Ward and for the Australian Electoral Officer for a State to be responsible for the maintenance of such Rolls within that State. The Australian Electoral Officer may make any arrangements necessary for the performance of that function. Such arrangements may include administrative arrangements for the transfer of information between Divisional Returning Officers and the Australian Electoral Officer. Items 8, 9 and 10 make consequential amendments while items 12, 13 and 14 make amendments to section 90 of the CEA to create equivalent inspection arrangements to those already applying to other electoral Rolls.


Items 15, 17 and 19 amend section 91 of the CEA in relation to the provision of Rolls and habitation indexes to political parties, members, senators and other persons or organisations determined by the Electoral Commission. The amendments add Ward Rolls to this scheme on an equivalent basis while preserving the rights of senators representing States as a whole to receive information in relation to the State as a whole. Items 21 and 22 amend section 91A of the CEA which relates to the use of information from the Electoral Roll and habitation index, adding references to Wards.


Items 23, 24 and 25 amend section 91E of the CEA which relates to the provision of certified lists of voters to senators. The amendments modify the current arrangements so that senators receive certified lists only in relation to the Wards they represent except that the rights of Senators continuing to represent States as a whole are preserved.


Items 26 to 36 relate to the enrolment process and provide equivalent enrolment rights in relation to Wards as those existing in relation to Divisions, where those Divisions are located in a State. As well as covering the general entitlements in relation to enrolments, the amendments address the rights of overseas voters, persons enrolling overseas, the spouses and children of overseas voters, Norfolk island voters, itinerant voters and prisoners.


Items 37 to 59 amend Part VIII of the CEA relating to the mechanics of enrolment. The amendments add references to Wards where necessary.


Items 60 and 61 amend section 166 of the CEA which relates to the mode of nomination. References to several new nomination forms are inserted, together with a reference in paragraph 166(1A)(b) to a Ward instead of a State. Item 62, which amends section 179, provides that if the number of candidates nominated for the Senate is not greater than the number of vacancies in a Ward or Territory, the Australian Electoral Officer shall declare the candidates elected without a poll taking place.


Items 63 to 67 relate to the polling process. Item 63 provides that certified lists of voters must also be prepared for each Ward and delivered to polling places in that Ward. Item 64 provides for the name of the Ward to be included on the Senate ballot paper. Item 65 provides that an elector may vote only in respect of the Ward or Territory in which he or she is enrolled for Senate elections. Items 66 and 67 are consequential and insert references to Wards into section 235 of the CEA. Items 68 to 71 amend the special provisions applying to polling in Antarctica to insert appropriate references to Wards.


Items 72 to 76 relate to the scrutiny of the vote. The major amendment (item 75) is to insert a new section providing for a scrutiny of votes in a half-Senate election for State senators to be undertaken largely in accordance with the system of preferential voting that is used in House of Representatives elections. Items 73 and 74 provide that the current system for scrutinising the Senate vote which uses proportional representation will continue to apply to Senate elections for Territory senators or following a dissolution of the Senate. The use of the computerised count will also continue to apply to those Senate elections. Item 76 amends section 282 of the CEA to provide that the recount of Senate votes after a dissolution of the Senate to determine the order of election of senators will be conducted on a Ward basis rather than a State basis.


Items 77 to 86 amend the Schedules of the CEA. Item 77 provides for a new form of writ to be issued for Senate elections, commanding the election of State senators in respect of Wards. Item 78 replaces and augments the current set of nomination forms for senators according to the different circumstances that will now apply in relation to the different kinds of Senate election. Item 79 amends the Senate ballot paper to provide for the name of the Ward to be included. Items 80 to 85 add references to Wards to Schedule 3 of the CEA which specifies the rules for the conduct of a preliminary scrutiny of declaration votes.