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Electoral Legislation Amendment (Candidate Eligibility) Bill 2021

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2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT (CANDIDATE ELIGIBILITY) 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

Bill

Electoral Legislation Amendment (Candidate Eligibility) Bill 2021

AEC

Australian Electoral Commission

Candidate

An individual seeking nomination in an election as a Senator or as a member of the House of Representatives

Electoral Act

Commonwealth Electoral Act 1918

Item

Refers to an item in the Bill

ICCPR

 

International Covenant on Civil and Political Rights

JSCEM

Joint Standing Committee on Electoral Matters

Qualification Checklist

Candidate Qualification Checklist set out in Form DB in Item 13 of Schedule 1 to the Bill.

 



 

ELECTORAL LEGISLATION AMENDMENT (CANDIDATE ELIGIBILITY) BILL 2021

GENERAL OUTLINE

Schedule 1 - Section 44 candidate checklist

Schedule 1 amends Part XIV of the Electoral Act, and Form DB of Schedule 1, to simplify the Qualification Checklist and to clarify when a response to a question is mandatory. The Qualification Checklist is also more streamlined with fewer questions.

The amendments build upon the Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019, and aim to minimise the risk of a recurrence of the disqualification issues that arose in the 45 th Parliament.

The Qualification Checklist is more streamlined with six fewer questions. Consistent with Recommendation 1 of the JSCEM Report on the conduct of the 2019 federal election and matters related thereto , tabled on 10 December 2020, the revised Qualification Checklist makes some questions mandatory for candidates, and requests important additional information as to the date of birth, place of birth, and date of naturalisation (if not an Australian Citizen at time of birth), of a candidate. It also requests the date of birth and place of birth for all parents and grandparents. Candidates are also required to advise if they became a citizen of a country other than Australia as a result of a relationship with a current or former spouse or similar partner.

The amended nominations process makes it compulsory for candidates to complete mandatory questions of the revised Qualification Checklist that, under the current version, a candidate could have left blank because of the structure of the form.

The new nomination requirements put the onus on candidates to satisfy themselves and the Australian people that they are not disqualified to sit in Parliament under the Constitution, including free-text fields which require candidates to provide additional information if an answer to a mandatory question is ‘not known’. A f ailure to mark a response to every item that is mandatory for the candidate will render the nomination invalid.

These requirements aim to maintain public confidence in the electoral process by ensuring transparency and accountability with respect to candidates’ eligibility for election to Parliament.

FINANCIAL IMPACT STATEMENT

The measures in the Bill are expected to be cost neutral. There are no significant costs or savings associated with 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 (Candidate Eligibility) Bill 2021

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 .

Schedule 1 - Section 44 candidate checklist

Schedule 1 amends Part XIV of the Electoral Act, and Form DB of Schedule 1, to simplify the Qualification Checklist and to clarify when a response to a question is mandatory.

Human rights implications

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

ยท          the right to privacy under Article 17.

Article 17 - Privacy

1.       The Bill engages Article 17 of the ICCPR through the publication and disclosure requirements in the Electoral Act with respect to the Qualification Checklist and any additional documents a person provides with the Qualification Checklist.

2.       The right to privacy is subject to permissible limitations where these limitations are authorised by law and not arbitrary, for a reason consistent with the ICCPR and reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with privacy must be proportionate to the end sought, and necessary in the circumstances of any given case.

3.       The Qualification Checklist is compulsory for a person seeking to nominate for election to House of Representatives or the Senate. The Qualification Checklist is used to help determine if the person is qualified under the Constitution to sit in the Australian Parliament. Publication of the Qualification Checklist, and any additional documentation provided by the candidate, is authorised by law.

4.       To the extent completion and publication of the mandatory Qualification Checklist for candidates in the election may risk interference with privacy, the measures are proportionate to, and necessary for, achieving the statutory purpose — to put the onus on those seeking nomination for election to demonstrate to the electorate that they are not disqualified under section 44 of the Constitution to sit or be chosen for Parliament.

5.       The Electoral Act contains existing safeguards to mitigate the risk of publishing personal information without consent. Candidates have the option to redact, omit or delete any information from an additional document they do not wish published, for instance if that information has not been sought on the form and does not relate to the eligibility of the candidate. This allows persons nominating to safeguard the privacy of their own and others’ personal information, for example, the personal information of family members which does not bear on the eligibility of a prospective candidate under section 44. The Electoral Commissioner also has a discretion to omit, redact or delete any information from the Qualification Checklist or additional documents in certain circumstances.

6.       Australian Privacy Principles 3, 5, 6, 10 and 13 do not apply in relation to personal information in the Qualification Checklist or an additional document published under section 181A of the Electoral Act or delivered to Parliament for tabling under section 181B of the Electoral Act.

Conclusion

7.       The Bill is compatible with human rights because, to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.



 

ELECTORAL LEGISLATION AMENDMENT (CANDIDATE ELIGIBILITY) 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 (Candidate Eligibility) Act 2021 (the Act).

Clause 2 - Commencement

2.              Subclause 2(1) provides that the provisions in column 1 of the 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 on 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 and that 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.              Clause 3 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 - Section 44 candidate checklist

Commonwealth Electoral Act 1918

1.       Item 1 repeals the definition of “answers” in subsection 4(1). This is a consequential amendment, as Item 4 makes the existing definition of “answers” redundant.

2.       Item 2 inserts a definition for the new term “mandatory” to clarify that a response to an item in the Qualification Checklist is compulsory unless the item is marked “[OPTIONAL]” or the item only applies if a specified response is given to a previous item and the person does not give the specified response.

3.       Item 3 repeals the definition of “mandatory question”. This is a consequential amendment, as the definition is no longer required due to the new definition of ‘mandatory” inserted by Item 2 .

4.       Item 4 repeals existing paragraph 170(1)(d) and substitutes a new paragraph 170(1)(d). The new paragraph 170(1)(d) requires that a candidate mark a response to every item that is mandatory for the candidate (within the meaning of the definition outlined at Item 2 ) and sign the Qualification Checklist in order to submit a valid nomination.

5.       Only the absence of a response to a mandatory question will affect a nomination’s validity. To avoid doubt, a nomination is not invalid under section 170 merely because an answer to a question (whether mandatory or optional) in the Qualification Checklist is incorrect, false or inadequate. This reflects that the AEC has no role, power or function in assessing the disqualification of candidates under section 44 of the Constitution. The AEC only considers whether the person has been duly nominated, and has complied with the requirements for nomination under the Electoral Act.

6.       Questions of eligibility to sit or be chosen under section 44 of the Constitution are matters for the Court of Disputed Returns.

7.       Item 5 amends note 1 at the end of subsection 170(1) to omit the phrase “include an answer to every mandatory question in the checklist as altered” and substitute it with “mark a response to every item that is mandatory for the person in the checklist as altered”. Item 5 is a consequential amendment to Items 1 and 2 .

8.       Item 6 inserts new subsection 170(1AA) to clarify that a person is taken to have marked a response to an item in the Qualification Checklist if the person does not leave the space provided for response blank.

9.       Items 7, 8, 9, 10, 11 and 12 are consequential amendments to give effect to the new term “response” and new definition of “mandatory” in subsection 4(1) outlined in the items above.

10.   Item 7 amends subsection 170(1A) to omit “an answer to a question”, and substitute it with “a response to an item”.

11.   Item 8 amends subsection 170A(2) to omit the phrase “answered every mandatory question (see paragraph 170(1)(d))” and substitute it with “complied with paragraph 170(1)(d)”.

12.   Item 9 amends paragraph 170A(3)(a) to omit the phrase “an answer to a question”, and substitute it with “a response to an item”.

13.   Item 10 amends paragraph 170A(3)(d) to omit the phrase “an answer”, and substitute it with “a response”.

14.   Item 11 amends the note at the end of subsection 172(2) to omit the phrase “answer every mandatory question in the qualification checklist”, and substitute it with “mark a response to every item in the qualification checklist that is mandatory for the person”.

15.   Item 12 amends the note at the end of subsection 392(1) to omit the phrase “mandatory question in the qualification checklist in Form DB of Schedule 1 is not answered” and substitute it with “response is not marked to an item in the qualification checklist in Form DB that is mandatory for the person or the checklist is not signed”.

16.   Item 13 repeals the existing Qualification Checklist form in Schedule 1 (Form DB) and substitutes it with the new Qualification Checklist as new Form DB.

17.   The information sought in the new Qualification Checklist is largely the same information sought in the repealed Form DB, with the exception of important additional information about the citizenship status of the candidate.

18.   The new Qualification Checklist includes new mandatory questions that require the candidate to provide their date of birth, place of birth, citizenship at time of birth, and date of naturalisation if they are not an Australian citizen by birth. The new Qualification Checklist also streamlines questions regarding parents, grandparents and spouses (including former spouses or similar partners who were foreign citizens at the time of partnership).

19.   As per the repealed Form DB, the new Qualification Checklist also includes questions relating to candidate eligibility under section 44 of the Constitution. This includes questions as to whether the candidate holds an office of profit under the Crown, is an undischarged bankrupt or insolvent, has a direct or indirect financial interest in any contract or other agreement with the Commonwealth public service, or is under, or subject to be sentenced for an offence against a law of the Commonwealth or of a State punishable by imprisonment for one year or longer.

20.   The new Qualification Checklist requires responses to all items unless these are not considered mandatory according to the new definition of “mandatory” in Item 2 . If the candidate does not know the information sought they will be required to make a categorical statement that the information is not known, and explain why this information is not known, to demonstrate that they have taken all steps that are reasonably required to satisfy themselves that they are not disqualified to be chosen or sit in Parliament by section 44 of the Constitution.

21.   The new Qualification Checklist further increases transparency of the eligibility of candidates. While the compulsory Qualification Checklist cannot guarantee that candidates who are duly nominated under the Electoral Act are not disqualified under section 44 of the Constitution, it puts the section 44 requirements categorically to candidates and voters by requiring candidates to demonstrate to themselves and the Australian people that they are eligible to be chosen and to sit in Parliament.