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Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT ( Counting, Scrutiny and Operational EFFCIENCIES) BILL 2021

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Electoral Matters, the Hon Ben Morton MP)

 



 

The following abbreviations and acronyms are used throughout this Explanatory Memorandum:

Abbreviation

Definition

2016 JSCEM Report

JSCEM Report on the conduct of the 2016 federal election and matters related thereto

2019 JSCEM Report

JSCEM Report on the conduct of the 2019 federal election and matters related thereto

Bill

Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021

AEC

Australian Electoral Commission

ARO

Assistant Returning Officer

DRO

Divisional Returning Officer

Electoral Act

Commonwealth Electoral Act 1918

ECL

Electronic Certified List

Item

Refers to an Item in the Bill

JSCEM

Joint Standing Committee on Electoral Matters

PVA

Postal Vote Application

PVC

An envelope bearing a postal vote certificate



 

ELECTORAL LEGISLATION AMENDMENT ( counting, scrutiny, and operational efficiencies ) BILL 2021

GENERAL OUTLINE

This Bill makes a number of technical amendments to the Electoral Act relating to postal voting, pre-polling, scrutiny, and authorisations. These amendments are made in response to the evolving electoral environment caused by changes in citizen expectations, technological progress, and changes in the scale and complexity of federal elections.

The Bill amends the Electoral Act to:

·          insert a vote-saving provision for postal votes that are not received inside a sealed PVC;

·          enable postal voters outside Australia to complete certain procedural steps electronically if they are unable to comply with authorised witness requirements;

·          modernise the management of postal vote applications, recognising that the majority of applications are now submitted online;

·          remove the requirements for pre-poll declaration envelopes to carry a ‘distinguishing number’, which are no longer used;

·          provide a fixed pre-poll period commencing no earlier than 12 days before polling day;

·          allow for the early opening and sorting of pre-poll ballot papers, and the early extraction of declaration votes;

·          align the handling of envelopes containing ‘spoilt’ or ‘discarded’ ballot papers with broader ballot paper handling requirements by allowing them to ‘bundled’;

·          increase the number of scrutineers permitted to observe the computerised scrutiny of Senate elections; and

·          remove the requirement for the authorisation of printed electoral material to include the details of the printer.

 

Part XV — Postal voting

The Bill amends Part XV to insert a vote-saving provision for postal votes that are not received inside a sealed PVC. This promotes the franchise of citizens by making it possible for postal ballot papers received in such an outer envelope to be counted as formal.

The amendments facilitate both paper-based and electronic alternatives for postal voters outside Australia to self-certify their identification on a PVC, if they are unable to find an authorised witness.  

Part XVA — Pre-poll voting

The Bill amends Part XVA to provide for a fixed pre-poll period. A more clearly defined pre-poll period benefits the AEC and participants in the electoral process.

 

Part XVIII and Schedule 3 — The scrutiny

The Bill amends Part XVIII and Schedule 3 to introduce efficiencies, by allowing for the early opening and sorting of pre-poll ordinary ballot papers from 4pm on polling day, and to allow the DRO to withdraw, unfold and secure the ballot papers from admitted declaration votes up to five days before polling day during preliminary scrutiny. Counting will not be permitted before close of polls.

The amendments also increase the number of scrutineers that can observe the computerised Senate count, by expanding the calculation of a candidate’s scrutineer entitlement to include second tier data entry operators conducting exception checks, rather than being limited solely to the number of AEC officers present.

Part XXA — Authorisation of electoral matter

The Bill amends Part XXA to remove the requirement for the authorisation of printed electoral material to include the details of the printer. This streamlines the requirements for authorisation.

FINANCIAL IMPACT STATEMENT

In the context of the AEC’s constitutional and legal obligations to undertake elections, it is not possible to accurately estimate the total cost of any election in advance. Once true costs are known the AEC will be in a position to work with the Department of Finance to finalise the financial implications of the measures in the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill. The amendments have been assessed as compatible with Australia’s human rights obligations.



Statement of Compatibility with Human Rights

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

Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Bill 2021

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 .

Human rights implications

The impact of the Bill on the following rights from the ICCPR has been considered:

·          the right to freedom of expression under Article19.

Article 19 - Freedom of Expression

1.       The Bill engages the right to freedom of expression under Article 19 of the ICCPR because it restricts individuals between 4pm and close of polls on polling day from disclosing any information relating to the early opening and sorting of pre-poll ordinary ballot papers.

2.       The right to freedom of expression may be subject to permissible limitations, where these limitations are provided by law and necessary for public order or respect of the rights or reputations of others. Limitations must also have a legitimate objective, be reasonable and necessary to achieve the desired purpose, and be proportionate to the need on which the limitation is predicated.

3.       The limitation on the disclosure of information before the close of the poll is provided by law and is intended to prevent any public influence upon electors who are yet to vote.

4.       The proposed limitation on the right to freedom of expression is proportionate to the legitimate end sought and is reasonable and necessary in the circumstances, as the prevention applies for a brief period of time and protects electors who are yet to vote to do so free from influence. The limitation of the right is therefore consistent with Article 19 of the ICCPR.

Conclusion

Where the Bill does impact a human right, namely the right of the scrutineers to freedom of expression, the relevant amendment is reasonable and proportionate when considered against the protection of an elector’s right to vote and take part in an election.  Overall, to the extent that the Bill places limitations, those limitations are reasonable, necessary, and proportionate.

ELECTORAL LEGISLATION AMENDMENT (COUNTING, SCRUTINY AND OPERATIONAL EFFICIENCIES) BILL 2021

NOTES ON CLAUSES

Clause 1 - Short title

1.              Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (Counting, Scrutiny and Operational Efficiencies) Act 2021 (the Act) .

Clause 2 - Commencement

2.              Subclause 2(1) provides that the provisions in column 1 of the table Commencement table) commence at the time set out in column 2.

3.              Item 1 in the Commencement table provides that the whole of the Act commences the day after the Act receives the Royal Assent.

4.              A note is inserted below the Commencement table stating that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments of the Act.

5.              Subclause 2(2) provides that information in column 3 of the Commencement table is not part of the Act. Information may be inserted into column 3, or information in column 3 may be edited, in any published version of the Act.

Clause 3 - Schedules

6.              This clause provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.



 

Schedule 1 Amendments

Commonwealth Electoral Act 1918

1.              Item 1 repeals section 188A, to remove the requirement for PVAs to be forwarded to DRO of the Division in which the applicant is enrolled.  The repeal of section 188A is a modernisation measure that centralises processes for handling both online and paper-based PVAs, which enhances operational efficiencies for the AEC.

2.              Items 2, 3 and 4 amend section 194 to facilitate both paper-based and electronic processes for postal voters outside Australia to securely self-certify their PVC by providing official documented evidence of identity where they are unable to find an “authorised witness”. Currently, Australians overseas are required to find another overseas Australian citizen, or a select list of Commonwealth recognised signatories to act as an “authorised witness”, which is not always possible depending on their location overseas. The amendments do not allow a postal voter to electronically send their PVC or postal ballot paper. Voting itself remains a paper based process.

3.              Item 2 repeals existing paragraph 194(1A)(a) and substitutes new paragraph 194(1A)(a) to allow a postal voter outside Australia the option to electronically submit a statement explaining why they were unable to comply with the authorised witness requirements in subsection 194(1). Under the existing definition in subsection 4(1), an “approved form” can be a manner for giving a notice electronically, such as by using a specified web portal.

4.              Item 3 repeals paragraph 194(1A)(c), and substitutes it with new paragraphs 194(1A)(c) and (d). These paragraphs set out the requirements for how a copy of the postal voter’s passport details is to be included.

5.              Item 4 inserts new subsections 194(1B) and (1C) into the Electoral Act.

6.              New subsection 194(1B) specifies the details that are required from the copy of the person’s passport, which are the same as the details in repealed paragraph 194(1A)(c).

7.              New subsection 194(1C) provides that subsection 8(1), Division 2 of Part 2, and subsections 14, 14A, 14B, and 15 of  the Electronic Transactions Act 1999 (ETA) apply to new subparagraphs 194(1A)(a)(ii) and (iii) and new paragraph 194(1A)(d). This is necessary because, under Item 1 of Schedule 1 to the Electronic Transactions Regulations 2020 , Part XV of the Electoral Act (except section 184 and section 184A) is exempt from the operation of those provisions in the ETA. The application of the ETA to the three new provisions is necessary to ensure that the postal voter has the option to comply with them electronically.  

8.              Item 5 amends section 200 by inserting new subsections 200(3), (4) and (5), which are vote-saving provisions related to postal votes.

9.              New subsection 200(3) provides that a postal vote received alongside a PVC in an outer envelope is not to be rejected because the postal vote is not inside the sealed PVC.

10.          New subsection 200(4) provides that the outer envelope is to be treated as if it were a PVC purporting to contain a postal ballot paper or postal vote.

11.          New subsection 200(5) provides that, despite new subsection 200(4), the following provisions in the Electoral Act apply to the PVC as if the PVC is the envelope that purports to contain the postal ballot paper or postal vote, rather than applying to the outer envelope:

·          paragraphs 195A(2)(c), (d), and (e), which relate to the endorsement, signing, and recording of PVCs;

·          section 196, which restricts the opening of envelopes purporting to contain a postal ballot paper on which a vote has been recorded; and

·          paragraph 6 of Schedule 3, which relates to information contained in a PVC scrutinised during preliminary scrutiny.  

12.          Under the existing provisions of the Electoral Act, if a postal ballot paper is not received in a sealed PVC it is excluded from the count.

13.          This amendment promotes the franchise by preventing a postal vote from being excluded from the count solely because the postal vote was received alongside, rather than inside, the voter’s PVC.

14.          Item 6 inserts new subsections 200BA(1AA) and (1AB) into the Electoral Act, which establish a statutory limit on the pre-poll voting period.

15.          New subsection 200BA(1AA) provides that the pre-poll voting period shall not commence on a day that is more than 12 days before polling day in the election.

16.          New subsection 200B(1AB) provides that pre-poll voting is not to occur in a State or Territory on a day that is a public holiday in that State or Territory. This prohibition does not include localised public holidays that apply only to a part of the State or Territory.   

17.          This amendment is intended to ensure voters retain significant opportunity to vote via pre-poll, while also attaining the benefits that a more clearly defined pre-poll period provides to the AEC, such as providing additional time to secure the most appropriate pre-poll facilities and allows more certainty in planning for all participants in the political process .

18.          Item 7 repeals subsections 200D(4) and (5). This is a consequential amendment to the insertion of new subsections 200BA(1AA) and (1AB) and responds to Recommendation 18 of the 2016 JSCEM Report and Recommendation 8 of the 2019 JSCEM Report.

19.          Item 8 repeals paragraph 200F(b). This amendment removes the requirement for a pre-poll vote certificate to carry a distinguishing number that is the same number as that allocated to the record of the application for the pre-poll vote certificate.  This is a modernisation measure, as there is no specified use of this number in AEC processes.

20.          Item 9 inserts subsection 218(2B) to provide that a scrutineer commits an offence if a scrutineer discloses or communicates information about any action taken in early opening and/or sorting, but not counting of pre-poll ballot papers under new subsection 274(2AA) before the closing of the poll.

21.          This amendment is intended to prevent scrutineers from disclosing to persons outside of the counting centre any information about the result or possible result indicated by sorting, but not counting of pre-poll ballot papers before the close of the poll, in particular to electors yet to cast a vote in the Division.

22.          Item 9 also inserts a note under subsection 218(2B) to refer to the secrecy obligations in section 323.

23.          Item 10 inserts the words “or counting centre (as applicable)” after “from the polling booth” in subsection 218(3) to extend the application of subsection 218(3) to counting centres in which scrutiny (including early opening and sorting, but not counting of pre-poll ballot papers) is taking place.

24.          Item 11 inserts new subsection 218(4) to define “counting centre” for the purposes of section 218 as premises being used for the purposes of scrutiny of ballot papers.

25.          Item 12 repeals subsection 227(11). The purpose of this amendment is to clarify that a postal vote and a mobile polling declaration vote from the same elector are to be treated in accordance with paragraph 6A of Schedule 3.

26.          Item 13 amends subsection 238(4), to omit the phrase “sealed up in a parcel which shall be”, and substitute it with the phrase “bundled up and”.

27.          Replacing the reference to “parcels”, with “bundles”, speeds up handling of ballot papers without compromising the integrity of any element of the voting process in an election. Bundled envelopes containing spoilt ballot papers would be required to be placed in securely fastened containers, in accordance with the directions of the Electoral Commissioner.

28.          This amendment also aligns the handling of envelopes containing spoilt ballot papers with broader requirements for the handling of House of Representatives and Senate ballot papers in the Electoral Act.

29.          Item 14 makes consequential amendments to repeal subsection 238A(3) and substitute it with new subsection 238A(3) to change “parcel” to “bundle”.

30.          Item 15 inserts new subsections 264(2A). This new subsection provides that, for the purposes of subsection 264(2) of the Electoral Act, if computerised scrutiny of votes in a Senate election is being undertaken, the total number of officers engaged in the scrutiny or counting of ballot papers at the counting centre includes the number of persons performing the function of a second tier data entry operator conducting exception checks at the centre. 

31.          Under existing section 264, each candidate in an election is entitled to be represented at a counting centre by one scrutineer for every “officer” engaged in scrutiny or counting at the counting centre. However, it is current AEC practice for some elements of the computerised Senate scrutiny to be conducted by contractors, and contractors are not included in the definition of “officer” provided in subsection 4(1).

32.          This amendment allows each candidate to be represented by one scrutineer for every second tier data entry operator conducting exception checks, in addition to the pre-existing entitlement to be represented by one scrutineer for every AEC officer present.  The purpose of this amendment is to avoid situations where the number of AEC officers present is not high enough for the equivalent number of scrutineers to be able to observe computerised scrutiny of Senate votes effectively.

33.          The role “second tier data entry operator conducting exception checks” is not a term defined in the Electoral Act. The functions duties of this role include checking and recording the preferences from a ballot paper that has prevented the ballot paper from being determined in the initial data capture and entry process. These reasons for this may include, where:

·          there are one or more interpretation differences from the first tier data capture;

·          the recorded ballot paper preferences have a sequence error or breakdown, or would make the ballot paper informal;

·          an AEC operator is required to make a decision on a captured preference or any other aspect of the ballot paper, or resolve a scrutineer challenge; or

·          preferences are required to be entered from the actual ballot paper, or there was an issue with the scanned image requiring resolution.

34.          This amendment promotes transparency and confidence in the integrity of the electoral counting process.

35.          This measure responds to Recommendation 2 of the 2016 JSCEM Report.

36.          Items 16, 17 , and 18 amend sections 265 and 274 to enable the early opening and sorting, but not counting of pre-poll ballot papers in House of Representatives elections.

37.          Item 16 amends paragraph 265(1)(a) to add that it is subject to new subsection 274(2AA). This is a consequential amendment to ensure consistency with the amendments to section 274 that allow initial steps in scrutiny to commence before the closing of the poll.

38.          Item 17 amends section 274 to insert a new paragraph 274(2)(ac) after 274(2)(ab). The new paragraph provides that, if the actions in paragraphs 274(2)(a) to (ab) are being taken in relation to a pre-poll ordinary ballot box between 4pm on polling day and the close of the poll in a House of Representatives election, the ballot papers in the ballot box are to be unfolded and sorted into a separate group for each candidate by first preference and a further group for any informal votes. No counting of sorted ballot papers is to occur until after the close of polls.

39.          Item 18 amends section 274 to insert new subsection 274(2AA). New subsection 274(2AA) allows for the opening of pre-poll ordinary ballot boxes and removal and sorting of ballot papers in accordance with paragraphs 274(2)(a), (aa), (ab) and new paragraph (ac), from 4pm on polling day. However, new subsection 274(2AA) provides that scrutineers present during any of these actions cannot object to a ballot paper before the close of the poll at 6pm. These amendments do not affect the ability of a scrutineer to challenge a ballot from 6pm on polling day. All ballots sorted prior to 6pm must be permitted full scrutiny and objection after 6pm, as if they were being witnessed for the first time.

40.          For the avoidance of doubt, new subsection 274(2AA) does not make it mandatory for any of the actions mentioned in paragraphs 274(2)(a) to (ab) to be undertaken before the close of the poll. Similarly, the mandatory requirement in new paragraph 274(2)(ac) only arises if the action mentioned in paragraph 274(2)(ab) is completed between 4pm on polling day and the close of the poll.

41.          The purpose of these amendments to sections 265 and 274 is to assist with ascertaining a timely result on polling day by allowing the early sorting and grouping, but not counting of pre-poll ordinary ballot papers. There has been a significant increase in pre-poll ordinary votes cast during federal elections, including at the 2019 federal election. The 2019 JSCEM Report recommended that the early sorting of pre-poll ordinary ballot papers be considered as a way to increase efficiency (see Recommendation 12). In responding to this recommendation, these amendments assist the AEC in ascertaining indicative results on polling day by allowing the AEC to take preparatory steps necessary to commence formality checks and counting immediately upon close of polls. The amendments apply only to House of Representatives elections.

42.          Items 19, 20, 21, and 22 amend th etable at subsection 321D(5) to remove the requirement for authorisations to provide the name and address of the printer who printed the communication.

43.          Item 23 is a consequential amendment to section 385A that repeals paragraphs 385A(b) and (c) and substitutes a new paragraph 385A(b).   

44.          Item 24 amends paragraph 17 of Schedule 3 to omit the words “after the close of the poll for the Division”. The purpose of these amendments is to provide the DRO with the option to undertake early extraction of ballot papers from being admitted votes from their envelopes on or after the fifth day before polling day. Ballot papers withdrawn from envelopes under this process shall be placed in a secure ballot-box by themselves for further scrutiny following the close of polls. 

45.          The preliminary scrutiny of declaration vote envelopes is a time-consuming process, and the ability of the DRO to extract declaration votes from their envelopes up to five (5) days prior to polling day will accelerate the completion of initial counts and the ascertainment of indicative results on polling day. These amendments respond to Recommendation 12 of the 2019 JSCEM Report.

46.          Item 25 also amends paragraph 17 of Schedule 3 to omit the words “unfolding or”.

47.          Item 26 inserts a new paragraph 17A into Schedule 3 to outline the process by which the DRO can undertake the early extraction of declaration votes in preliminary scrutiny. New paragraph 17A also provides that, if the DRO has not undertaken this extraction by the close of the poll, the DRO must do so after the close of the poll.