2013-2014-2015-2016

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

SENATE

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

Amendments to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

AMENDMENTS TO THE COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

(Government)

OUTLINE

These amendments to the Commonwealth Electoral Amendment Bill 2016 (the Bill) reflect the considerations of the Bill by the Joint Standing Committee on Electoral Matters (JSCEM) and its subsequent recommendations. In particular, several submissions to the JSCEM advocated the need for further amendments to the provisions relating to below the line voting. The JSCEM recommended that the Government introduce a system of partial optional preferential voting below the line that instructs voters to mark a minimum of 12 preferences, with related savings provisions that any ballot with at least six boxes numbered sequentially (starting at ‘1’) to be considered formal.

In addressing the recommendations of the JSCEM, these proposed amendments provide for partial optional preferential voting below the line on Senate ballot papers. The amendments propose to instruct voters to consecutively number at least 12 boxes (commencing at ‘1’ and sequentially numbering after that) below the line, or numbering all boxes below the line where there are fewer than 12 candidates. The amendments also include a savings provision that where a minimum number of six squares are marked sequentially from 1 to 6, the vote is formal.

FINANCIAL IMPACT STATEMENT

The proposed amendments will not have a financial impact.

 

AMENDMENTS TO THE COMMONWEALTH ELECTORAL AMENDMENT BILL 2016

NOTES ON AMENDMENTS

Amendment (1)

This amendment inserts a definition of ‘below the line’ into subsection 4(1) of the Commonwealth Electoral Act 1918 (the Electoral Act). Under this definition, a square is printed ‘below the line’ on a ballot paper if the square is printed on the ballot paper in accordance with subparagraph 210(1)(f)(i). Subparagraph 210(1)(f)(i) is inserted by item 6 of the Commonwealth Electoral Amendment Bill 2016 (the Bill).

Amendment (2)

This amendment repeals and substitutes subsection 239(1) of the Electoral Act. Item 19 of Schedule 1 in the Bill inserted the heading ‘Voting below the line’ before subsection 239(1). The amendment will amend subsection 239(1) to require a person to mark his or her vote on the ballot paper in a Senate election by writing at least the numbers 1 to 12 in the squares printed on the ballot paper below the line (or the number 1 to the number of squares printed on the ballot paper if there are fewer than 12). The number 1 is to be given to the candidate for whom the person votes as his or her first preference, and the numbers 2, 3, 4 and so on to at least the number 12 (or to the number of squares printed on the ballot paper if there are fewer than 12), are to be given to other candidates so as to indicate the order of the person’s preference for them.

The requirement under subsection 239(1) is to write ‘at least’ the numbers 1 to 12 below the line (where there are 12 or more squares printed) does not preclude voters from numbering all of the squares below the line, or any other number of squares between 12 and the total number of squares below the line. If voters choose to do this, their preferences will be counted in accordance with section 273 of the Electoral Act.

This amendment also inserts a note under subsection 239(1) advising that section 268A of the Electoral Act provides for when the vote is formal.

Amendment (3)

This amendment inserts items 21A and 21B of Schedule 1 into the Bill.

Item 21A repeals and substitutes paragraph 268(1)(b) of the Electoral Act, which provides that a Senate ballot paper is informal where it has no vote indicated on it or does not indicate an order of preference for all candidates (subject to section 269 and 270(1)). The substituted paragraph provides that a ballot paper is informal, subject to section 268A (which deals with formality of votes below the line) and 269 (which deals with formality of votes above the line), if it has no vote indicated on it, or does not indicate the voter’s first preference for one candidate and then consecutively number at least 11 other candidates in the order of his or her preference below the line. This ensures that this provision reflects the new requirements of subsection 239(1) in relation to below the line voting (see amendment (2)).

 

Item 21B inserts new section 268A into the Electoral Act. Subsection 268A(1) provides that a ballot paper in a Senate election is not informal under paragraph 268(1)(b), if:

·          the voter has marked the ballot paper in accordance with paragraph 239(1)(b) below the line (with the number 1 to the number of squares printed on the ballot paper where there are fewer than 12); or

·          if there are more than 6 squares printed on the ballot paper below the line - the voter has consecutively numbered such squares from 1 to 6 (whether or not the voter has also included one or more higher numbers in those squares).

Paragraph 268A(2)(a) provides that, for the purposes of the Electoral Act, a voter who marks only a single tick or cross on the ballot paper in a square below the line is taken as having written the number 1 in the square. Paragraph 268A(2)(b) provides that, for the purposes of the Electoral Act, numbers written in a square printed on a Senate ballot paper below the line that are repeated (and any higher numbers), and any number higher than a missing number, are to be disregarded.

A note is also inserted at the end of subsection 268A(2) which indicates that paragraph 268(2)(b) applies both for the purposes of determining whether a ballot paper is formal, and for the purposes of determining which numbers marked on a ballot paper are counted in the election.  Two examples are also provided which specify the application of this provision in particular circumstances to reinforce the note. 

Amendment (4)

This amends item 23 of Schedule 1 in the Bill to insert a note at the end of proposed subsection 269(1A).  Proposed paragraph 269(1A)(1)(b) concerns above the line voting and provides that, for the purposes of the Electoral Act, numbers written in a square printed on a Senate ballot paper above the line that are repeated (and any higher numbers), and any number higher than a missing number, are to be disregarded.   The note at the end subsection 269(1A) indicates that paragraph 269(1A)(b) applies both for the purposes of determining whether a ballot paper is formal, and for the purposes of determining which numbers marked on a ballot paper are counted in the election.  Two examples are also provided which specify the application of this provision in particular circumstances to reinforce the note. 

Amendment (5)

This amendment omits and substitutes item 24 of Schedule 1 in the Bill. This item will repeal and substitute subsection 269(2) of the Electoral Act. New subsection 269(2) applies if a ballot paper in a Senate election has squares marked above the line in accordance with subsection 239(2) (with 1 to 6) or paragraph 269(1)(b) (with a 1, or 1 and more and higher numbers), and has squares marked below the line in accordance with subsection 239(1) (with 1 to 12 or more) or section 268A (with at least 1 to 6, or with missing or repeated numbers that cause numbers to be disregarded).

In these circumstances, for the purposes of section 272 (which specifies how ballot papers marked above the line are to be treated) and section 273(which provides for the scrutiny of votes), the only squares that are taken to have been marked on the ballot paper are the squares that were marked below the line.

This amendment ensures that where ballot papers are marked both above and below the line in such a manner as to not otherwise be informal, the preferences expressed below the line are counted and those above the line are disregarded.

Amendment (6)

This amendment omits items 26 and 27 of Schedule 1 in the Bill and substitutes them with new item 26. New item 26 repeals section 270 of the Electoral Act. Section 270 of the Electoral Act provides for certain votes below the line with non-consecutive numbers to be formal. Given the new requirements in subsection 239(1) (see amendment (2)) and the new formality provisions in paragraph 268(1)(b) and section 268A (see amendment (3)), section 270 and the amendments proposed to it in the Bill are no longer required.

Amendments (7), (8) and (9)

These amendments amend item 41, which changes Form E (section 209). Form E is the Senate ballot paper. The amended instruction below the line on the Senate ballot paper is to vote ‘by numbering at least 12 of these boxes in the order of your choice, with number 1 as your first choice’. As an alternative, the form indicates that if the ballot paper has 12 or fewer squares below the line, the instruction to vote is to be replaced with ‘by numbering these boxes in the order of your choice (with number 1) as your first choice’.

The amended instructions reflect the new requirements under subsection 239(1) (see amendment (2)) to place, on the Senate ballot paper, at least the numbers one to twelve below the line in order of choice (or the number 1 to the number of squares printed on the ballot paper if there are fewer than 12).

The amended instruction below the line does not limit a voter’s ability, under section 268A, to number between six and 12 boxes or more than 12 boxes (see amendment (3)). The 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 between six and 12 squares is a saving provision. Although these votes will not be ruled informal as they express a clear voter choice, the Senate ballot paper instructions will adopt the principal requirement in subsection 239(1), designed to give a reasonable life to an individual’s vote on preference distribution, to number at least 12 squares (or the number of squares on the ballot paper if there are fewer than 12).