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Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020

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2019-2020

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

ELECTORAL LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2020

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

  (Circulated by authority of the Minister for Finance, Senator The Hon Mathias Cormann) 

 



 

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

Abbreviation

Definition

Bill

Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020

ACT

Australian Capital Territory

AEC

Australian Electoral Commission

AEO

Australian Electoral Officer

ARO

Assistant Returning Officer

Assistant DRO

Assistant Divisional Returning Officer

DRO

Divisional Returning Officer as defined in section 4(1) of the Commonwealth Electoral Act 1918 ,

Electoral Act

Commonwealth Electoral Act 1918

Funding and Disclosure Act

Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Act 2018

Item

Refers to the Item in the Bill

Modernisation Act

Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019

PVAs

Postal Vote Applications

Referendum Act

Referendum (Machinery Provisions) Act 1984

Regulations

Electoral and Referendum Regulation 2016



 

 

ELECTORAL LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2020

GENERAL OUTLINE

The Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act). The Bill clarifies the relationship between federal and state and territory electoral finance laws, makes technical amendments to public election funding rules and streamlines electoral processes for the efficient delivery of federal electoral events.

The Bill amends the Electoral Act to:

·          clarify the relationship between federal and state and territory electoral donation and disclosure laws following the High Court decision in Spence v Queensland [2019] HCA 15;

·          make technical amendments to address anomalies in entity registration and public election funding rules;

·          improve electoral processes, electoral administration, vote issuing procedures and improve workforce flexibility for the Australian Electoral Commission; and

·          expand electronically assisted voting methods, which are currently only available to sight impaired persons, to Antarctic electors (Australians working in Antarctica). This replaces the special arrangements for Antarctic electors in the Electoral and Referendum Acts.

Where relevant, these changes are mirrored in Referendum Act, to maintain consistency between the Electoral and Referendum Acts.

Schedule 1, Part 1 - Public Election Funding and Gifts

The Electoral Legislation Amendment (Funding and Disclosure Reform) Act 2018 (Funding and Disclosure Act) amended the Electoral Act and inserted section 302CA. On 17 April 2019 the High Court found section 302CA of the Electoral Act was wholly invalid.

The Bill amends the Electoral Act to clarify the relationship between federal, state and territory electoral funding and disclosure laws (sections 302CA and 314B). Individuals and entities that participate in electoral processes across different levels of Government are subject to different electoral funding and disclosure laws across federal, state and territory jurisdictions.

The amendments to Division 3A and 6 of Part XX of the Electoral Act seek to clarify the interaction between federal, state and territory electoral funding and disclosure regimes. Clarifying the relationship between federal, state and territory electoral laws improves certainty for all entities and individuals who participate in electoral events and processes across different levels of government. The amendments seek to ensure that state and territory laws cannot restrict the ability of donors to give funds for federal purposes and gift recipients to deploy funds for federal purposes. The amendments also make equivalent and consequential changes to disclosure rules.

Part 1, Schedule 1 of the Bill also makes a series of technical amendments to clarify and address anomalies in Part XX of the Electoral Act. These technical amendments rectify defects and clarify requirements following changes to public election funding and entity registration through the Funding and Disclosure Act. The Bill:

·          clarifies public election funding entitlement and claims provisions with respect to jointly endorsed Senate groups - Senate groups formed by candidates endorsed by different registered political parties;

·          makes technical amendments with respect to indexation of public election funding and rounding of the automatic election funding payment;

·          allows claims for public election funding to be amended to correct errors and omissions during the consideration period - period between lodgement and determination of the claim;

·          addresses anomalies between the mandatory registration requirements for political campaigners and associated entities, and applications to deregister; and

·          makes a number of related minor and consequential amendments.

Schedule 1, Part 2 - Amendments to Voting and Scrutiny Processes

The Bill implements another tranche of Australian Electoral Commission (AEC) priorities to modernise aspects of the Electoral Act to respond to evolving challenges and to ensure the continued integrity of the Australian electoral system.

Schedule 1, Part 2 of the Bill amends various aspects of the voting and scrutiny process in the Electoral Act. Where relevant, these amendments to the Electoral Act are mirrored in the Referendum Act.  Measures in Part 2 of Schedule 1 to the Bill will:

·          allow the Electoral Commissioner, rather than the Australian Electoral Officer (AEO), to approve requirements for the storage and destruction of enrolment claims;

·          expand the electronically assisted voting methods available for sight impaired persons, to Antarctic electors, in place of the existing special arrangements for Australians working in Antarctica;

·          improve workforce flexibility by allowing the Electoral Commissioner to devolve any duties or functions of Divisional Returning Officers (DROs) or Assistant DROs to other AEC staff members;

·          remove the requirement for pre-poll voting to be available at the offices of DROs, pre-poll voting will take place at advertised pre-poll voting centres declared by the Electoral Commissioner;

·          allow for minor changes to the Senate ballot paper format to make the ballot paper clearer and easier to handle;

·          streamline vote issuing processes to allow more flexibility in the nature of questions an officer or official may ask to ascertain information about a person’s voting entitlement;

·          streamline vote issuing processes to allow for the presiding officer and other polling place officials to ask questions to ascertain entitlement to vote, and assist in all aspects of vote issuing on polling day;

·          streamline vote issuing processes by removing the prescribed sequence between marking the elector’s name off the Roll and issuing the ballot papers - provided both occur, the sequence is immaterial to maintaining the integrity of the vote;

·          allow the Electoral Commissioner the flexibility to include administrative marks on ballot papers, to allow for more visual differentiation between different ballot papers for different Divisions, states and territories;

·          remove unnecessary prescription and streamline postal vote issuing processes to allow the AEC to despatch postal voting material by means considered most reasonable and practicable, (excluding electronic transmission of postal votes);

·          allow for the most suitable and cost effective implement to be provided at polling booths for electors to mark their ballot papers - whether that is a pen, pencil or other method. Currently only pencils may be provided; and

·          make a number of related minor and consequential amendments.

These amendments support improvement in the conduct of federal elections and referendums. The measures will enable the AEC to better align work practices with the contemporary behaviour and expectations of voters and position the AEC to facilitate more efficient, and timely service delivery.

Since 1983, the size and scale of federal elections have posed greater complexities and challenges. These challenges include the size of eligible voting populations, and the number of candidates and parties seeking to participate in elections. Since 1983, the electoral roll has increased at a rate of roughly one million electors every two elections.

Schedule 2 - Amendments relating to a Redistribution Committee for the Australian Capital Territory

Schedule 2 to the Bill makes minor changes to the composition of the Redistribution Committee for the Australian Capital Territory (ACT) to allow a senior AEC staff member to be on the committee, rather than a senior DRO. This will alleviate some additional workload burden on DROs, especially if a redistribution coincides with an electoral event. It will also ensure ACT Redistribution Committee members will be more senior than the DRO, which is consistent with other states and the Northern Territory.

FINANCIAL IMPACT STATEMENT

The measures in the Bill are expected to be cost neutral. There will be no significant cost or savings associated with the Bill.

STATEMENT OF COMPATABILITY 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 (Miscellaneous Measures) Bill 2020

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 .

Overview of the Bill

The Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020 (the Bill) amends the Commonwealth Electoral Act 1918 (the Electoral Act) and the Referendum (Machinery Provisions) Act 1984 (the Referendum Act).

The Bill amends the Electoral Act to:

·          clarify the relationship between federal and state and territory electoral donation and disclosure laws following the High Court decision in Spence v Queensland [2019] HCA 15;

·          make technical amendments to address anomalies in entity registration and public election funding rules;

·          improve electoral processes, electoral administration, vote issuing procedures and improve workforce flexibility for the Australian Electoral Commission; and

·          expand electronically assisted voting methods, which are currently only available to sight impaired persons, to Antarctic electors (Australians working in Antarctica). This replaces the special arrangements for Antarctic electors in the Electoral and Referendum Acts.

Where relevant, these changes are mirrored in Referendum Act, to maintain consistency between the Electoral and Referendum Acts.

Schedule 1, Part 1 - Public Election Funding and Gifts

Part 1 of Schedule 1 to the Bill clarifies the relationship between federal and state and territory electoral donation and disclosure laws following the High Court decision in Spence v Queensland [2019] HCA 15.

Entities that participate in electoral processes across different levels of government are subject to different electoral finance and disclosure laws across state, territory and federal jurisdictions.

The Bill seeks to clarify the relationship between federal and state electoral funding and disclosure laws (sections 302CA, and 314B).

 

 

 

Part 1 of Schedule 1 of the Bill also makes a series of technical amendments to clarify and address anomalies in Part XX of the Electoral Act:

·          clarifying public election funding entitlement and claims provisions with respect to jointly endorsed Senate groups - Senate groups formed by candidates endorsed by different registered political parties;

·          making technical amendments with respect to indexation of public election funding and rounding of the automatic election funding payment;

·          allow claims for public election funding to be amended to correct errors and omissions during the consideration period - period between lodgement and determination of the claim;

·          addressing anomalies between the mandatory registration requirements for political campaigners and associated entities, and applications to deregister; and

·          make a number of related minor and consequential amendments.

Schedule 1, Part 2 - Amendments to Voting and Scrutiny Processes

Measures in Part 2 of Schedule 1 to the Bill will:

·          allow the Electoral Commissioner, rather than the Australian Electoral Officer (AEO), to approve requirements for the storage and destruction of enrolment claims;

·          expand the electronically assisted voting methods available for sight impaired persons, to Antarctic electors, in place of the existing special arrangements for Australians working in Antarctica;

·          improve workforce flexibility by allowing the Electoral Commissioner to devolve any duties or functions of Divisional Returning Officers (DROs) or Assistant DROs to other AEC staff members;

·          remove the requirement for pre-poll voting to be available at the offices of DROs, pre-poll voting will take place at advertised pre-poll voting centres declared by the Electoral Commissioner;

·          allow for minor changes to the Senate ballot paper format to make the ballot paper clearer and easier to handle;

·          streamline vote issuing processes to allow more flexibility in the nature of questions an officer or official may ask to ascertain information about a person’s voting entitlement;

·          streamline vote issuing processes to allow for the presiding officer and other polling place officials to ask questions to ascertain entitlement to vote, and assist in all aspects of vote issuing on polling day;

·          streamline vote issuing processes by removing the prescribed sequence between marking the elector’s name off the Roll and issuing the ballot papers - provided both occur, the sequence is immaterial to maintaining the integrity of the vote.

·          allow the Electoral Commissioner the flexibility to include administrative marks on ballot papers, to allow for more visual differentiation between different ballot papers for different divisions, states and territories;

·          remove unnecessary prescription and streamline postal vote issuing processes to allow the AEC to despatch postal voting material by means considered most reasonable and practicable, (excluding electronic transmission of postal votes);

·          allow for the most suitable and cost effective implement to be provided at polling booths for electors to mark their ballot papers - whether that is a pen, pencil or other method. The Electoral and Referendum Acts currently require pencils to be provided in polling booths ; and

·          make a number of related minor and consequential amendments.

Schedule 2 - Amendments relating to a Redistribution Committee for the Australian Capital Territory

Schedule 2 to the Bill makes minor changes to the composition of the Redistribution Committee for the Australian Capital Territory (ACT) to allow a senior AEC staff member with local knowledge to be on the committee, rather than the senior DRO for the ACT. This will alleviate workload burden on the DRO, especially if a redistribution coincides with an election.

Human rights implications

The Bill may engage the right of people with disabilities to have the opportunity to enjoy political rights on an equal basis with others, as provided for in the Convention on the Rights of Persons with Disabilities (CRPD).

Article 29 of the CRPD - Political rights of people with disability

Article 29 of the CRPD guarantees that people with disability have equal opportunity to effectively and fully participate in political and public life on an equal basis with others.

Removing requirement for pre-poll centres to be at offices of Divisional Returning Officers

Article 29 of CRPD provides the right that that voting facilities are appropriate, accessible, and easy to use. The Bill may facilitate this by removing the requirement for pre-poll voting centres to be available at divisional offices. So pre-poll voting will only be available in Australia at places declared and advertised as pre-poll voting centres by the AEC.

Divisional offices are working offices. Most offices are not designed or staffed for issuing large volumes of pre-poll votes and are not always easily accessible to the public.  In addition, there is no longer a divisional office physically located within every division. Early voting centres are generally located at premises with sufficient space (for voters and volunteers), security provisions, are public facing and accessible in convenient locations for voters.

This amendment allows for the opportunity to select centres that are more accessible to people with disability. For example, some divisional offices do not have accessible ramps needed for wheelchair access or are difficult to locate. This change would not prevent a divisional office from being declared a pre-poll voting centre where this is the best location to provide the service.

 

 

Broadening voting implements available at polling booths

Currently the Electoral and Referendum Acts require pencils, and only pencils, to be provided at polling booths for electors to record their vote. The Bill broadens this provision to allow other implements or methods of marking ballot papers to be provided in polling booths, including pens, pencils or another method. This would allow the Electoral Commissioner to identify the most suitable and cost effective implement while potentially accommodating future developments in technology. This may engage Article 29 of CRPD by allowing the Australian Electoral Commission the flexibility to provide accessible implements and also allow for the potential use of assistive and new technologies where appropriate, to allow electors with a disability to fully participate on an equal basis to record their vote.

Technical Amendments - do not raise human rights issues

The measures in the Bill are largely technical. The Bill makes changes to streamline existing processes, clarify existing rules, address anomalies and rectify defects. It does not alter existing entitlements and rights in relation to individual and entities who participate in Commonwealth electoral processes.

The Bill seeks to clarify the relationship between federal and state electoral funding and disclosure laws (sections 302CA, and 314B). These are aimed at providing certainty for entities and individuals who participate in electoral processes across different jurisdictions - local, state, territory and federal. The amendments seek to ensure that state and territory laws cannot restrict the ability of donors to give funds for federal purposes and gift recipients to use funds for federal electoral purposes. The amendments also make equivalent and consequential changes to disclosure rules.

Under the Electoral Act, Australians working in Antarctica during a federal election or referendum may vote through special arrangements (Part XVII Electoral Act, Part V Referendum Act). The Bill expands the electronically assisted voting methods, which are currently only available to sight impaired voters, to Australian electors working in Antarctica. This replaces the existing special arrangements for Antarctic electors. This does not alter Antarctic electors’ enrolment or voting entitlement, it simply changes the method by which they do so.

Conclusion

The Bill is compatible with human rights as it does not raise any human rights issues, with the exception that the Bill may engage with the rights of people with disabilities to enjoy political rights on an equal basis with others by facilitating improved accessibility for people with disabilities.

ELECTORAL LEGISLATION AMENDMENT (MISCELLANEOUS MEASURES) BILL 2020

NOTES ON CLAUSES

Clause 1 - Short title

1.              This clause says the Act is cited as the Electoral Legislation Amendment (Miscellaneous Measures) Act 2020 (the Act) .

Clause 2 - Commencement

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

3.              Item 1 in the table provides that sections 1, 2 and 3 and anything in the Act not otherwise covered by the commencement table will commence the day the Act receives the Royal Assent.

4.              Item 2 in the table provides that Part 1 of Schedule 1 will commence the day the Act receives the Royal Assent.

5.              Item 3 and Item 4 of the table provides that Part 2 of Schedules 1 and Schedule 2 will commence on a day or days to be fixed by Proclamation. If any of the provisions in Part 1 of Schedule 1 or Schedule 2 do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they will commence on the day after the end of that period. This allows the AEC to make systems and administration changes ahead of commencement - mitigating the implementation risk associated with any unexpected by-election.

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

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

Clause 3 - Schedules

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



 

SCHEDULE 1 - Amendments relating to gifts, voting and scrutiny processes

Part 1 - Amendments commencing day after Royal Assent

Commonwealth Electoral Act 1918

Section 286, 292G - Public Election Funding - clarifications

9.              Public election funding arrangements are set out in Part XX of the Electoral Act. Public election funding is payable in relation to any candidate or Senate group who receives at least 4 per cent of the total formal first preference votes cast in the election. The maximum amount of funding that may be payable is calculated on a set rate per first preference vote received by the candidate or Senate group.

10.          Section 286A currently refers to election funding being payable in relation to any candidate who received ‘more than’ 4%’ of the total first preference vote. This is unintentionally inconsistent with all other relevant wording elsewhere in the Electoral Act. It should be ‘at least 4 per cent’. This is the policy intent. Sections 293, 294 and 295, which establish the entitlement, all refer to ‘at least 4%’.

11.          Item 1 replaces the reference to ‘more than 4%’ in section 286A (the simplified outline of Part XX, Division 1) with ‘at least 4%’ to corrects errors made to the public election funding arrangements through the Funding and Disclosure Act .

12.          Item 1 also clarifies that the entitlement is with respect to formal first preference votes cast in an election.

Subsection 287(1) - Definitions

13.          Item 2 insertsfive new definitions in subsection 287(1) - ‘ federal purpose ’, group amount ’, ‘ jointly endorsed group ’, ‘ regulated entity ’ and ‘ single-party endorsed group ’.

14.          Federal purpose ’ is defined to mean a purpose of incurring ‘electoral expenditure’ (defined in section 287AB), or creating or communicating ‘electoral matter’ (defined in section 4AA).

15.          Group amount ’ refers to the amount and how that amount of public election funding is determined with respect to endorsed Senate groups, that is, single-party endorsed groups and jointly endorsed groups. Public election funding arrangements are set out in Division 3, Part XX of the Electoral Act.

16.          The definition of ‘ jointly endorsed group ’ refers to candidates in a Senate election who have been endorsed by different registered political parties and who wish to have their names grouped on the Senate ballot paper - Groups appear above the line on the Senate ballot paper.

17.          ‘regulated entity’ is defined in section 302CA to mean a political entity, a political campaigner or a third party, while in section 314B it is defined to mean a political entity, a political campaigner,  a third party or an associated entity.

18.          Single-party endorsed group ’ refers to candidates in a Senate election who have been endorsed by the same registered political party and who wish to have their names grouped on the Senate ballot paper - Groups appear above the line on the Senate ballot paper.

19.          Item 3 inserts new subsection 287(9A) and a note to clarify how formal first preference Senate group votes are formulated for election funding purposes. Subsection 287(9A) clarifies that formal first preference votes for a Senate group includes both above the line and below the line Senate group votes. Section 272 of the Electoral Act sets out how above the line Senate votes are treated.

Section 287M - Deregistration of political campaigners and associated entities

20.          The Bill clarifies the link between mandatory registration requirements and the ability to deregister for political campaigners and associated entities. The Electoral Commissioner will only be required to deregister a person or entity if the Commissioner is satisfied the mandatory registration requirements are no longer triggered.

21.          Currently there is no link between the mandatory registration criteria and the ability to deregister upon lodging an application for deregistration. Section 287M currently requires the Electoral Commissioner to deregister a person or entity upon application. This may apply even when a person or entity still meets the criteria for political campaigner or associated entity status.

22.          As drafted, the provisions in Subdivision B, Division 1A in Part XX of the Electoral Act create a circularity: an entity or person must be registered if it meets certain criteria; the Electoral Commissioner must deregister the person or entity if it applies; but then the person or entity is required to register again if it continues to meet the registration requirements.

23.          For example: An entity incurs electoral expenditure of $600,000 in the 2018-19 financial year and so is required to register as a political campaigner under section 287F. In the 2019-20 financial year, the entity applies to the Electoral Commissioner to deregister, even though their prior year expenditure requires them to be recognized as a political campaigner. Currently, the Electoral Commissioner must deregister the entity under subsection 287M(3), notwithstanding that the entity continues to meet the requirement to be registered under section 287F of the Electoral Act.

24.          Item 4 amends subsection 287M(3) to clarify the link between mandatory registration requirements and the ability to deregister for political campaigners and associated entities. The Electoral Commissioner’s obligation to deregister political campaigners and associated entities will only be triggered ‘if the Commissioner is satisfied that the person or entity no longer meets the requirements for registration as a political campaigner or associated entity’.

25.          Item 5 insertsnew subsection 287M(4). This establishes that a decision to refuse an application for deregistration under section 287M is a reviewable decision under section 141 of the Electoral Act. This applies the review process established in section 141 of the Electoral Act to the relevant decisions made under section 287.

Section 286, 292G - Public Election Funding - clarifications

26.          Section 292G currently refers to election funding being payable in relation to any candidate who received ‘more than 4%’ of the total first preference vote. This is unintentionally inconsistent with all other relevant wording elsewhere in the Electoral Act. It should be ‘at least 4 per cent’. This is the policy intent. Sections 293, 294, 295, which establish the entitlement, all refer to ‘at least 4%’.

27.          Item 6 replaces the reference to ‘more than 4%’ in section 292G with ‘at least 4%’ to corrects errors following changes made to the public election funding arrangements through the Funding and Disclosure Act.

28.          Item 6 also clarifies that the entitlement is with respect to formal first preference votes cast in an election.

29.          Item 7 amends paragraph 293(1)(b) to clarify that formal first preference votes for a Senate group includes both above the line and below the line Senate group votes, consistent with how above the line Senate votes are treated under section 272 of the Electoral Act.

Section 293 - Clarifying registered political party’s entitlement to public election funding with respect to jointly endorsed Senate groups

30.          Public election funding is payable in relation to any candidate or Senate group who receives at least 4 per cent of the total formal first preference votes cast in the relevant election. The maximum amount of funding that may be payable is calculated on a set rate per first preference vote the candidate or members of the Senate group receive.

31.          The Bill clarifies a complex interaction between provisions within public election funding rules that apply to registered political parties with respect to jointly endorsed Senate groups (Electoral Act, Part XX, Division 3). Those provisions have a level of complexity because they were amended in 2018 to ensure that public funding entitlements beyond $10,000 have to correspond to substantiated electoral expenditure. Jointly endorsed Senate groups refer to candidates in a Senate election who have been endorsed by different registered political parties and who wish to have their names grouped in the Senate ballot papers.

32.          The public funding process depends on the interaction of several rules that were enacted as a consequence of changes made to the public election funding scheme by the Funding and Disclosure Act. Following these changes, the Electoral Act is not as consistent as it could be in the wording of payment and claims provisions that apply to registered political parties in respect of jointly endorsed Senate groups. Groups appear above the line on the Senate Ballot.

33.          Section 298A deals with claims and is clear that, where an amount is payable to more than one person, payment must be split as a percentage payable to each person. Funding for a joint ticket is intended to be divisible and the total funding can be claimed only once. However, if read in isolation the separate payment-related subsections 293(1)(b) and (2)(a)(ii) may be interpreted as making the payment for each registered party endorsing candidates in a jointly endorsed Senate group equal to the group’s entire entitlement. This is not the policy intent.

34.          The policy intent is that an entitlement to public election funding accrues to the party in respect of the Senate group votes only once (whether it is a jointly endorsed Senate group or a single party Senate group). The registered political parties with members in the group must agree how that amount is apportioned among them and advise the AEC how the entitlement is to be paid (subsection 293(2) and 293(4)). The amendments to these subsections also makes clear that apportionment applies when a payment is made to a member of a Senate group.

35.          This change will therefore clarify the public election funding entitlement with respect to jointly endorsed Senate groups, for avoidance of any doubt, so it is explicit that the entitlement applies consistently across all types of Senate groups. The sum of the claims for each party that endorses candidates as members of the group will not exceed the entitlement for the group as whole. The entitlement will be apportioned among the parties who endorse members of the group in accordance with the agreement set by the parties and provided to the AEC. In the absence of such an agreement, the Electoral Commissioner will decide the apportionment.

36.          While the Electoral Act was always intended to be interpreted in a way that did not give rise to one entitlement at the claim stage and a different one at the payment stage, amending the Act to clarify the rules removes any potential doubt and better explains the Parliament’s original intent. Where a party or candidate exceeds the four per cent threshold, the public funding rules are designed to create equitable treatment regardless of whether a claimant is an independent, a party, or a member of a group.

37.          Item 8 repeals paragraph 293(2)(a) and replaces it with a new paragraph. Item 8 removes potential for perception of anomalies in public election funding rules that apply to registered political parties with respect to jointly endorsed Senate groups. Subparagraph 293(2)(a)(iii) provides that the entitlement will be apportioned among the registered political parties who endorse members of the group in accordance with the agreement set by the registered political parties and provided to the AEC. In the absence of such an agreement, the Electoral Commissioner will decide the apportionment.

38.          Item 9 makes a consequential change to the note under subsection 293(2).

Subsection 293(3) - Public Election Funding - clarifications

39.          Item 10 makes a consequential change to subsection 293(3) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act.

Section 293, 294 - Clarifying registered political party’s entitlement to public election funding with respect to jointly endorsed Senate groups

40.          Item 11 inserts a new subsection 293(4) which sets out the requirements for a valid agreement made under subparagraph 293(2)(a)(iii) by the registered political parties who endorse candidates to form a jointly endorsed Senate group .

41.          Subparagraph 293(2)(a)(iii) and subsection 293(4) make it clear that the amount of public election funding that each registered political party may be entitled to with respect to a jointly endorsed Senate group, when aggregated, cannot exceed the group amount. Item 2 inserts a definition of ‘group amount’ in subsection 287(1).

42.          Item 12 makes a consequential change to paragraph 294(2)(a) and updates the election funding rate to reflect indexation.

43.          Item 13 makes a consequential change to the note under subsection 294(2).

Section 295 - Public Election Funding - clarifications

44.          Item 14 makes a consequential change to paragraph 295(1)(b) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act.

45.          Item 15 makes a consequential changes to paragraph 295(2)(a) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act. Item 15 also makes a consequential change to paragraph 294(2)(a), updating the election funding rate to reflect indexation.

46.          Item 16 makes a consequential change to paragraph 295(2)(a) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act.

47.          Item 17 makes a consequential change to the note under subsection 295(2).

48.          Item 18 makes consequential change to subsection 295(3) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act.

Section 296 - Clarifying registered political party’s entitlement to public election funding with respect to jointly endorsed Senate groups

49.          Item 19 repeals subsection 296(1) and replaces it with a revised subsection 296(1) and new subsection 296(1A). Subsection 296(1) establishes the automatic payment of election funding.

50.          Under subsection 296(1), the Electoral Commission must pay $10,000 (indexed under section 321) in relation to recipients who meet the requirements under sections 293, 294 or 295 (as the case requires). The payment must be made as soon as practicable after 20 days after the polling day for an election or elections. A registered political party may elect not to receive election funding under paragraph 126(2)(d) of the Electoral Act. A candidate (entitled under subsection 294(2)) and a Senate group (entitled under 295(2)) may elect not to receive public election funding.

51.          Item 19 inserts a new subsection 296(1A) which applies to registered political parties who are only entitled to claim public election funding in respect of jointly endorsed Senate groups. Where each of the registered political parties who endorse candidates in a jointly endorsed group is only entitled to claim public election funding under subparagraph 293(2)(a)(iii), the Electoral Commission must ensure that the amount paid to the agent of each party under subsection 296(1) is the amount equal to the percentage, referred to in that subparagraph for the party, of $10,000. Item 2 inserts a definition of ‘jointly endorsed group’ in subsection 287(1).

Section 297 - Amending claims for public funding to correct errors and omissions

52.          Item 20 makes a consequential amendment to subsection 297(5) following the insertion of new section 298BA. New section 298BA allows agents to vary claims for public election funding during the consideration period, after the claim is submitted but before it is determined.

Section 298A - Clarifying registered political party’s entitlement to public election funding with respect to jointly endorsed Senate groups

53.          Item 21 omits ‘is payable’ in paragraph 298A(c) and replaces it with ‘is to be paid’. This reflects that section 298A deals with claims and the form of claims, including which person or persons payments are being made to.

54.          Item 22 omits ‘is payable’ in paragraph 298A(d) and replaces it with ‘is to be paid’. This reflects that section 298A deals with claims and the form of claims, including which person or persons payments are being made to.

Section 298BA - Varying claims for public funding to correct errors and omissions

55.          Those who may be eligible for an amount of public election funding greater than the automatic payment threshold of $10,000, must submit a claim for the amount of ‘electoral expenditure’ actually incurred (sections 297 and 298 of the Electoral Act). ‘Electoral expenditure’ is defined in section 287AB.

56.          Claims must be lodged with the Electoral Commission within the period from 20 days after, to six months after polling day (section 298B of the Electoral Act). Claimants can make both an interim and a final claim, or just one claim, which will be treated as a final claim (sections 297 and 298A of the Electoral Act).

57.          Item 23 insertsa new section 298BA which allows the agent of the candidate, Senate group, relevant registered party, or party branch (as the case requires) to vary a claim (interim or final claim). New section 298BA allows the relevant agent to amend a claim for public election funding for the purpose of correcting an error or omission during the consideration period. The agent would not be able to amend the claim after the Electoral Commission has determined the claim.

58.          The 20 day time limit for the Electoral Commission to determine the claim would reset, for example from the time the agent amends the claim.

59.          While the Electoral Commission can amend a claim to correct a formal error or remove a formal defect, there is currently no ability for an agent to amend their claim after it is submitted but before a decision is made, where the agent becomes aware of an error or omission. For example, where the agent has failed to include an invoice, claimed a wrong amount, or included the wrong invoice to substantiate part of their claim.

60.          Under the existing arrangements an amount in a preliminary claim may be refused because of incomplete or unclear information provided by the claimant, for example, descriptions used by third party suppliers on an invoice. However the amount may be accepted in a final claim after more satisfactory documentation is submitted.

61.          In circumstances like error, omission or ambiguous information, it is preferable that an agent may be able to rectify their submission by providing more information or documentation to substantiate a claim.

62.          Division 3, Part XX gives the Electoral Commission the ability to refuse part of a claim, which could be used to reject items of expenditure if they were duplicated for example. However the Electoral Commission could clarify details in claims and enable an agent to amend a claim during consideration if they become aware (themselves or through the Electoral Commission) that there may be an error, omission or defect.

63.          This does not affect the separate process in section 319A of the Electoral Act for amending returns and disclosures. The Electoral Act already allows applicants to vary their application for registration as a political party, political campaigner or associated entity during the consideration period (sections 131 and 287L of the Electoral Act).

64.          The agent of the candidate, Senate group, relevant registered political party or branch (sections 288 and 289 of the Electoral Act) may change from time to time. So the person who lodged the claim might not be the same person who seeks to vary the claim, if the person who is the agent has changed.

Section 298C - Public Election Funding - clarifications

65.          Item 24 makes a consequential change to subsection 298C(5) reflecting how above the line Senate votes are treated under section 272 of the Electoral Act.

Relationship between federal, state and territory laws with respect to gifts

66.          In late 2018, the Commonwealth sought to clarify the relationship between federal, state and territory law relating to electoral funding and disclosure through sections 302CA (related to gifts) and 314B (disclosure) in the Funding and Disclosure Act.  In Spence the High Court ruled section 302CA invalid due to being beyond the legislative powers of the Commonwealth.

67.          The revised provisions are narrower than their predecessors. They do not confer immunities for gifts that may, or may not be, used for a federal purpose. The replacement rules are all connected to the fundamental concept of a federal purpose. The rules recognise that assignment of funds to a federal purpose can arise at different points in the donation process, including at the point of seeking donations, offering donations, giving donations, or receiving them.

68.          Sections 302CA (relating to donations) and 314B (disclosure) are being amended, in light of the High Court’s decision, to ensure that the relevant federal electoral laws apply to donations (and disclosure) where a gift is given only for federal electoral purposes. Gift recipients will only be covered by the exclusive federal regime if they manage and use the gifts consistently with that purpose.

69.          If a gift to a political entity is given or set aside for federal purposes but is subsequently used in an inconsistent way - for instance for an election regulated by state or territory law - then the relevant Commonwealth law is taken to have never applied.

70.          In practice, many political parties register at federal, state and territory levels as they participate in multiple electoral processes. Entities and individuals that participate in electoral processes across different levels of Government are subject to different electoral finance and disclosure laws across federal, and state and territory jurisdictions.

71.          The amendments to Division 3A and 6 of Part XX of the Electoral Act seek to clarify the interaction between federal, state and territory electoral funding and disclosure regimes. Clarifying the interaction between federal and non-federal electoral laws improves certainty for all entities and individuals who participate in electoral events and processes across different levels of government. This also ensures that state and territory laws cannot restrict the ability of donors to give funds for federal purposes and gift recipients to deploy funds for federal electoral purposes. The amendments also make equivalent and consequential changes to disclosure rules.

Section 302CA - Gifts for federal purposes and state and territory laws

72.          Items 25 repeals section 302CA and inserts new section 302CA.

73.          New section 302CA establishes immunities from state and territory electoral laws for donors, gift recipients and the agents of gift recipients in relation to the offering, seeking, giving, receipt, retention and use of gifts.

74.          ‘Federal purpose’ is defined by subsection 287(1) to mean a purpose of incurring ‘electoral expenditure’ (defined in section 287AB), or creating or communicating ‘electoral matter’ (defined in section 4AA). These definitions describe activities related to federal electoral expenditure and do not cover expenditure for a state, territory or local government election.

75.          A ‘political entity’ is defined in subsection 4(1). A ‘political campaigner’ , ‘regulated entity’ , and a ‘third party’ are defined in subsection 287(1).

Giving, receiving or retaining gifts; Offering to give or seeking gifts

76.          Subsection 302CA(1) establishes immunities from state and territory laws for persons who offer gifts. The immunities apply where the gift is expressly offered for a federal electoral purpose. This expression of purpose could be conveyed by various methods including for example discussion in meetings, by correspondence, or through electronic messages.

77.          Subsection 302CA(2) establishes immunities from state and territory laws for gift recipients and agents of gift recipients in relation to the seeking of gifts. The immunities apply where the proposed gift is sought expressly for use for a federal electoral purpose. This expression of purpose could be communicated by various methods including for example by a description on an event invitation, information on a donation form, by discussion, correspondence, or through electronic messages.

78.          Subsection 302CA(3) establishes immunities from state and territory laws for donors in relation to the giving of gifts. The immunities apply where the gift is expressly given for a federal electoral purpose. A donor’s expression of purpose could be evidenced in a number of ways, including on a donation form or in the exchange of the amount for a receipt that confirms the purpose.

79.          Subsection 302CA(4) establishes immunities from state and territory laws for gift recipients and agents of gift recipients in relation to the receiving or retention of gifts. This can include for example accepting a gift from a donor to subsequently convey to a party treasurer, secretariat or accountant. Retaining a gift includes for example depositing an amount in a bank account, or otherwise setting money aside to be later drawn on by the recipient. The immunities apply automatically upon receipt of a gift, but are lost if the gift recipient retains or uses the gift for a non-federal purpose.

 

Use for other purposes

80.          Donors retain their immunity where they give, or offer to give, a gift expressly for a federal electoral purpose, where this gift is otherwise permitted under federal law (see subsection 302CA(9)). No subsequent action by the gift recipient can take away a donor’s immunity. However, gift recipients and their agents lose their immunities where any part of a gift is set aside for only a state or territory electoral purpose, or is used for a purpose which is not a federal electoral purpose. The immunities are removed as if they had never been conferred (subsection 302CA(5)).

81.          Subsection (6) is a constitutional savings provision. It gives the immunity in subsection (4) a narrower operation if it is found that the Commonwealth does not have the power to cover all gifts that are received or kept, except those kept or used for non-federal purposes.  The narrower operation limits the immunity to gifts that are expressly given for federal purposes.

Using Gifts

82.          Subsection 302CA(7) establishes an immunity for gift recipients with respect to the use of gifts for federal purposes.

83.          The immunity applying to the use of a gift by or on behalf of a regulated entity (subsection 302CA(7)) does not prevent the state or territory law from applying to the offering, seeking, giving, receiving or retention of the gift (subsection 302CA(8)). Those actions will be subject to the earlier immunities in subsections 302CA(1) to (4).

84.          The immunities apply where the giving, receiving or keeping of the gift is not prohibited by the federal gift and donation requirements (subsection 302CA(9)).

85.          Item 26 amends subsection 302D(1C). This is a consequential amendment following the insertion of the new definition of ‘federal purpose’ in subsection 287(1) ( item 2 refers).

Relationship between federal, state and territory electoral disclosure laws

86.          Part XX of the Electoral Act sets out the electoral disclosure requirements for individuals and entities who participate in federal electoral processes.

87.          ‘Federal purpose’ is defined by subsection 287(1) to mean a purpose of incurring ‘electoral expenditure’ (defined in section 287AB), or creating or communicating ‘electoral matter’ (defined in section 4AA). These definitions describe activities related to federal electoral expenditure and do not cover expenditure for a state, territory or local government election.

88.          A ‘political entity’ is defined in subsection 4(1). An ‘associated entity’ , a ‘political campaigner’ , ‘regulated entity’ , and a ‘third party’ are defined in subsection 287(1).

Section 314B - Disclosing amounts provided etc. for federal purposes under state or territory electoral laws

89.          Item 27 repeals section 314B and replaces it with new section 314B.

90.          New section 314B establishes immunities from state and territory electoral disclosure laws for donors, gift recipients and the agents of gift recipients in relation to the amounts and expenditure.

Information on amounts provided or received

91.          Subsection 314B(1) establishes immunities from state or territory electoral disclosure laws for donors in relation to amounts and information about amounts. The immunities apply where the amount is expressly given for a federal electoral purpose.

92.          Subsection 314B(2) establishes immunities from state or territory electoral disclosure laws for gift recipients in relation to amounts and information about amounts. The immunities apply only if the gift is retained and used for a federal purpose. There is a constitutional savings provision similar in intended effect to subsection 302CA(6).

Disclosure of expenditure

93.          Subsection 314B(5) establishes immunities from state or territory electoral disclosure laws for political entities, political campaigners, associated entities and third parties with respect to expenditure incurred for federal electoral purposes.

Disclosure of debts

94.          Subsection 314B(6) establishes immunities from state or territory electoral disclosure laws for political entities, political campaigners, associated entities and third parties with respect to debts incurred for federal electoral purposes.

Interpretation

95.          Disclosure thresholds, timelines and requirements vary significantly across different jurisdictions.

96.          The immunities from state or territory electoral disclosure laws apply regardless of whether an amount or information related to an amount is required to be disclosed under Part XX of the Electoral Act. Paragraph 314B(7)(b) deals with state and territory laws that require the disclosure of aggregate amounts. There can be no requirement to disclose an aggregate amount to the extent that the aggregate amount includes an amount that section 314B immunises from disclosure under state or territory electoral law. For example, a State law might require the disclosure of the total of all donations received by a party in a year. Section 314B(7)(b) ensures that this aggregate amount need not include an amount donated, segregated and used for a federal electoral purpose.

Section 321 - Indexing of public election funding amounts

97.          The note to subsections 296(1) and 297(1) states that the amount of $10,000 (automatic election funding payment) is to be indexed under section 321 of the Electoral Act. However, subsection 321(1) which describes the indexation methodology does not refer back to these subsections as a ‘relevant amount’ for the purposes of indexation arrangements.

98.          Item 28 makes a consequential change to add the definition of ‘group amount’ and a reference to subparagraph 293(2)(a)(i) to the definition of ‘relevant amount’.

99.          Item 29 addssubsections 296(1) and 297(1) to the list of ‘relevant amounts’ under subsection 321(1).

100.      Item 29 also makes a consequential reference to add subsection 296(1A) to the list of ‘relevant amounts’ under subsection 321(1).

Section 321 - Rounding of automatic payment of election funding entitlement

101.      Section 296 provides that, as soon as practicable after 20 days after polling day, the Electoral Commission must pay $10,000 to each party, candidate or group that is entitled to claim public election funding (those that receive at least 4 per cent of formal first preference votes cast in the election (subsections 293(2), 294(2) or 295(2))). This is an automatic payment made regardless of electoral expenditure incurred.

102.      The automatic election funding payment is indexed under section 321.  Subsection 321(4) requires this amount to be calculated to three decimal places. Items 30, 31 and 32 provides for the automatic payment of election funding entitlements to be rounded to the nearest $1. This would carry through to the amounts computed under paragraphs 293(2)(b), 294(2)(b), 295(2)(b), sections 296 and 297 in terms of the threshold above which a claim substantiating election funding must be submitted. A single dollar amount is clearer in terms of a threshold for public election funding claims, and automatic election funding payments, rather than a fraction of a cent. The public election funding rate remains rounded to three decimal places.

103.      Item 33 is a minor rewording in relation to indexation of the disclosure threshold. The disclosure threshold is rounded to the nearest $100 following indexation.

Part 1, Schedule 1 of the Bill - Application Provisions - Item 35

104.      Items 34 provides that the items in Part 1, Schedule 1 to the Bill with respect to section 287M, 302CA, and 314B, apply to relevant applications made; gifts given, offered or sought; and amounts provided, or expenditure incurred, (as the case requires) on or after commencement of the relevant item.

105.      The amendments related to indexation apply from the relevant financial year or part financial year in line with relevant indexation arrangements under Part XX of the Electoral Act. 

106.      The remaining amendments in Part 1, Schedule 1 to the Bill apply on and after commencement of item 35 .

SCHEDULE 1 - Amendments relating to gifts voting and scrutiny processes

Part 2 - Amendments commencing on proclamation

Commonwealth Electoral Act 1918

Subsection 4(1) - Definitions - expanding electronically assisted voting method to Antarctic electors

107.      The Bill extends electronically assisted voting process, currently available to sight impaired electors, to Australians working in Antarctica. This change removes Part XVII of the Electoral Act as the special arrangements currently in place for Antarctic electors will be replaced by the electronically assisted voting method under Part XVB of the Electoral Act.

108.      Item 35 inserts the definition of ‘Antarctica’ into subsection 4(1). This is a consequential change following the repeal of Part XVII of the Electoral Act.

109.      Item 36 repeals the definition of ‘Antarctic elector’ under subsection 4(1) and replaces it with a revised definition. This is a consequential change following the repeal of Part XVII of the Electoral Act.

110.      Item 37 amends the definition of ‘officer’ to remove reference to an Antarctic Returning Officer and an Assistant Antarctic Returning Officer. This is a consequential change following the repeal of Part XVII of the Electoral Act.

Section 37, 202B - Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

111.      Item 38 inserts a new section 37. The statutory authorisation in section 37 allows the Electoral Commissioner to devolve any duties or functions of the Divisional Returning Officer (DRO) or the Assistant Divisional Returning Officer (Assistant DRO) to other AEC staff members. This allows for centralisation of processes, efficient allocation of resources, and sharing of the DRO and Assistant DRO workloads during peak times.

112.      The Electoral Act confers a range of functions and duties on DROs with respect to electoral processes conducted within their Division. For example, receiving ballot papers and ballot boxes to be counted, making determinations on formality of House of Representatives ballot papers, and declaring the poll, among other things.

113.      The Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 inserted a new statutory authorisation that allowed the Electoral Commissioner to authorise AEC staff members to perform DRO functions relating to the forwarding of declaration votes and preliminary scrutiny.

114.      New section 37 extends these changes, put in place ahead of the 2019 Federal election, to encompass all DRO and Assistant DRO duties and functions. This will allow the AEC to manage workload and responsibilities more efficiently and in line with priorities while maintaining the same service level and integrity standards. It also recognises that it is not possible for the DRO to personally undertake the activities at the volumes required. For example, votes are not always counted in each individual division. Co-located counting centres are established where several divisions activities are managed together in one place.

115.      The workforce structure in the Electoral Act reflects, in parts, an outdated AEC workforce structure. It is no longer consistent with how the AEC operates, or needs to operate today. This amendment builds greater workforce flexibility and allows the AEC to devolve powers and functions in line with evolving workforce practices, structures and priorities.

116.      Item 39 fixes an error by inserting “for” before “the subdivision” in paragraph 94A(3)(d).

 

Expanding electronically assisted voting method to Antarctic electors

117.      The Bill amends the Electoral Act to expand the electronically assisted voting methods available for sight impaired persons, to Australians working in Antarctica. This replaces the existing special arrangements for Australians working in Antarctica during an electoral event. Currently Antarctic electors can vote under special arrangements in Part XVII of the Electoral Act. The change allows the electronically assisted voting method (Part XVB Electoral Act), which are currently only available to sight impaired electors, to also be used by eligible Antarctic electors, in place of existing arrangements.

118.      Currently physical polling stations are established at Australian Antarctic research stations (or ships in transit) for eligible Antarctic electors. An Antarctic Returning Officer is appointed for each station (usually from staff at the station) to manage the polling and transmit the particulars of each Antarctic elector and the particulars of the marks on the ballot papers to the AEC at the close of polling. The AEC transcribes the ballot paper markings onto new ballot papers and forwards them to the relevant division.

119.      The processes and availability of electronically assisted voting for sight impaired persons is determined through the Electoral and Referendum Regulations 2016 (Regulations) . Under the current Regulations, sight impaired electors may register to vote by telephone through authorised call centres established by the Electoral Commissioner. Once registered, the voter can vote through the authorised call centre. The call centre operator reads the candidate options and the elector gives instructions on how they want their ballot paper to be marked.

120.      Under the current Regulations, there is a second person listening to each call to ensure that the call centre operator transcribes the elector’s preferences correctly on to the ballot paper. The caller is informed of this at the beginning of the call. In addition, scrutineers are permitted to attend the call centre to observe its operations as well as listen in to calls. Due to the two-step identification process, no-one listening to the call during voting is aware of the elector’s identity.

Section 96B - Antarctic electors and unenrolled persons working in Antarctica - enrolment arrangements

121.      Item 40 insertsnew section 96B which details enrolment and voting entitlements for Antarctic electors and unenrolled persons working in Antarctica. Part XVII of the Electoral Act previously dealt with Antarctic electors. This Bill repeals Part XVII of the Electoral Act.

122.      Under new subsection 96B(1), electors who are eligible to be treated as ‘Antarctic electors’ are entitled to vote using the electronically assisted voting method under Part XVB of the Electoral Act. This replaces the existing special arrangements for Australians working in Antarctica during an electoral event under Part XVII of the Electoral Act.

123.      Enrolment is compulsory for Antarctic electors and persons working in Antarctica who qualify for enrolment under section 93 of the Electoral Act. Persons who qualify to be treated as Antarctic electors retain their enrolment and voting entitlement but are exempt from compulsory voting under section 245 of the Electoral Act. Decisions to reject claims for enrolment or transfer of enrolment are reviewable under section 120 of the Electoral Act.

124.      Antarctic electors are not a class of “eligible overseas electors”. They are electors and persons who happen to be working in Antarctica (often on research stations) during an electoral event. Unlike eligible overseas electors or other electors, Australians working in Antarctica cannot access voting mechanisms that may be available to other Australians who are overseas on polling day, for example, postal voting, pre-poll voting, or voting at an embassy.

125.      Subsection 4(1) of the Electoral Act defines an ‘elector’ to mean any person whose name appears on a Roll as an elector. Antarctic electors and eligible unenrolled persons working in Antarctica retain their enrolment entitlement but are exempt from the place of living requirement for enrolment - that is, the requirement to be enrolled at the address in the division or subdivision where they have been living for the preceding one month (subsections 96B(2), 96B(4) and 96B(5) of the Electoral Act). This is similar to the enrolment arrangements for prisoners under section 96A who remain qualified under section 93.

126.      While an elector (who is already on the Roll) is eligible to be treated as an Antarctic elector, they are entitled to retain their enrolment for the subdivision in which they were enrolled when they first began to be in Antarctica, or began to be on a ship that is in transit to or from Antarctica (subsection 96B(2) of the Electoral Act). Item 40 clarifies and makes explicit the enrolment entitlement with respect to unenrolled persons who qualify for enrolment under section 93 and who would be eligible to be treated as an Antarctic elector if they were on the Roll. Unenrolled persons who are captured by subsection 96B(4) are entitled to be enrolled for a subdivision determined under new subsection 96B(5).

Antarctic electors - Annotating the Roll

127.      An annotation on the Roll is no longer necessary to trigger the entitlement to vote as an Antarctic elector. Subject to the requirements set by regulations made under Part XVB of the Electoral Act, Antarctic electors may access electronically assisted voting whether or not they are identified as Antarctic electors on the Roll. An elector may notify the Electoral Commissioner that they consider themselves to be an Antarctic elector (subsection 96B(3)). The annotation to the Roll, identifying a person as an Antarctic elector must be made or removed (as the case requires) based on information from the elector, or if the Electoral Commissioner becomes aware through other means (subsections 96B(6) and 96B(7)).

128.      Although an annotation is no longer needed to trigger the entitlement to vote as an Antarctic elector, annotations are still made to the Roll to ensure the Antarctic elector’s enrolment remains unaffected by their absence from the place of residence where they are enrolled and they are not impacted by compulsory voting mechanisms (such as receiving a non-voter notice).

129.      Item 41 fixes a typographical error by inserting “for” before “the subdivision” in paragraph 96(2A)(d).

130.      Item 42 makes a consequential amendment, omitting the reference to Part XVII in subsection 99(3) of the Electoral Act.

131.      Item 43 repeals the definition of Antarctic elector in section 113 of the Electoral Act.   Item 36 inserts a revised definition of Antarctic elector in subsection 4(1) of the Electoral Act.

132.      Item 44 repeals paragraph 114(1B)(c) and substitutes it with a new paragraph. The new paragraph reflects the place of living exemption for Antarctic electors and prisoners enrolled under section 96A. Paragraph 114(1B)(c) clarifies that an elector in the same subdivision cannot raise an objection against an Antarctic elector or an elector entitled to remain enrolled under section 96A (enrolment of prisoners), because they are enrolled at an address other than where they live.

133.      Item 45 repeals paragraph 114(4)(c) and substitutes it with a new paragraph. The new paragraph reflects the place of living exemption for Antarctic electors and prisoners enrolled under section 96A. The Electoral Commissioner may not object to the enrolment of an Antarctic elector or an elector entitled to remain enrolled under section 96A (enrolment of prisoners), because they are enrolled at an address other than where they live.

134.      Item 46 repeals paragraph 118(4A)(c) and substitutes it with a new paragraph. This reflects the place of living exemption for Antarctic electors and prisoners enrolled under section 96A.

Section 188 - The dispatch of postal votes

135.      Section 188 of the Electoral Act contains prescriptive requirements regarding the delivery of postal voting material to electors who have applied for a postal vote. Section 188 contains instructions for the Electoral Commissioner or Assistant Returning Officer (ARO) with respect to sending postal voting material to the applicant. The instructions differ depending on when the application for a postal vote is received.

136.      Currently, if the Electoral Commissioner or ARO receives a postal vote application:

·          at or before “6pm on the Friday that is 8 days before polling day in the election” - the postal vote material must be delivered to the applicant by post or other means (but not electronically - fax, email).

·          at or before “6pm on the Friday that is 8 days before polling day in the election” - if the applicant has requested a particular means of delivery (but not electronically - fax, email) the postal vote material must be delivered to the applicant by that means if Electoral Commissioner or Assistant Returning Officer considers it to be the most reasonable and practicable in the circumstances.

·          “after 6pm on the Friday that is 8 days before polling day in the election and at or before 6pm on the Wednesday that is 3 days before polling day in the election” - the postal vote material must be sent to the applicant by the means the Electoral Commissioner or Assistant Returning Officer considers most reasonable and practicable in the circumstances.

137.      Items 47 and 48 of the Bill amend section 188 of the Electoral Act to streamline requirements regarding dispatch of postal votes. New subsection 188(2) replace the prescriptive instructions with a general requirement that postal voting material be sent by the means considered by the Electoral Commissioner or the ARO to be the most reasonable and practicable in the circumstances - provided the application is received before the deadline for postal vote applications, that is, at or before 6pm on the Wednesday that is 3 days before polling day in the election.

138.      This will simplify the provision and remove unnecessary prescription and complexity. However, there is no adjustment to the delivery method or approach for postal voting as a consequence of these changes. In most instances, the delivery method is through Australia Post. However the AEC will consider alternative methods open to it (such as a courier) where it is reasonable and practicable to do so. These methods may be considered due to timeframes (for example, closer to election day) or due to local considerations. Postal voting material is not sent via electronic communication, such as fax or email. The Electronic Transactions Act 1999 does not apply to dispatch of postal voting material.

139.      Item 48 of the Bill repeals subsections 188(2), (3) and (4) of the Electoral Act and replaces it with new subsection 188(2). New subsection 188(2) allows the Electoral Commissioner or ARO who receives a postal vote application at, or before the Wednesday, that is 3 days before polling day in the election, to send the postal voting material to the applicant by means the Electoral Commissioner or ARO considers to be the most reasonable and practicable in the circumstances. This will not change the existing delivery methods or extend to electronic means, such as email. While voters can apply on-line for a postal vote, voting itself remains a paper based process.

Sections 200BA, 200C, 200D, 200DD - Pre-poll voting no longer required at offices of DROs

140.      Part XVA of the Electoral Act deals with pre-poll voting. Applications for pre-poll voting and pre-poll ordinary voting are currently available before polling day at pre-poll voting centres declared by the Electoral Commissioner under section 200BA, and at divisional offices under sections 200D and 200DD.

141.      The Bill removes the requirement for pre-poll voting to be available at divisional offices.

142.      The number of people voting early continues to increase each election. Divisional offices are working offices and are generally not suitable for large volumes of pre-poll voters. Most divisional offices are not designed or staffed to issue large volumes of pre-poll votes, and are not always easily accessible to the general public. In addition, there is no longer a divisional office physically located within every division. Pre-poll voting centres are generally located at premises with sufficient space (for voters and volunteers), security provisions, are public facing and accessible to voters. These centres are set up specifically to cater for pre-poll voters - generally offering a much better voter experience.

143.      This change would not prevent a divisional office from being declared a pre-poll voting centre where this is the best location to provide the service. At the 2019 federal election, pre-poll votes cast at divisional offices accounted for less than one per cent of all pre-poll votes cast. Pre-poll voting will be available at advertised pre-poll voting offices declared by the Electoral Commissioner under section 200BA. Arrangements for issuing pre-poll votes in places outside Australia will remain unchanged.

144.      Item 49 amends the note under subsection 200BA(1A) by omitting the reference to the divisional office as a location where pre-poll voting must be available.

145.      Item 50 repeals paragraph 200C(1)(a) which removes the option for an application for a pre-poll vote to be made to any DRO.

146.      Item 51 repeals subsection 200D(1) which removes the option for an application for a pre-poll vote to a DRO to be made at the divisional office during ordinary office hours or during the hours of polling on polling day.

147.      Item 52 omits the reference to a DRO in the definition of voting officer at section 200DC.

148.      Item 53 makes a consequential amendment to paragraph 200DD(1)(b).

149.      Item 54 repeals paragraph 200DD(1)(c) as pre-poll ordinary voting will no longer be available at the divisional office.

Section 200DE - Pencils in polling booths

150.      The Electoral Act requires pencils (and only pencils) to be provided in polling booths for use by voters. This prescriptiveness does not allow the AEC to explore other options which may be more suitable, taking into account cost, useability and outcomes. The Bill amends the Electoral Act to allow other implements or methods of marking ballot papers to be provided in polling booths, including pens, pencils or other methods. This would allow for the Electoral Commissioner to identify the most suitable and cost effective implement to be provided, taking into account local conditions and factors such as budget, scanning (for counting Senate ballots), useability and potentially accommodating future developments in technology.

151.      In particular, ballot papers marked with pen provide a clearer image when ballot papers are scanned, which is currently done with all Senate ballot papers. When postal votes are completed, they are completed by whichever writing implement the voter chooses to use.

152.      Item 55 amends section 200DE to remove the requirement for only pencils and replaces it with a general requirement that each compartment must have an implement or method for voters to mark their ballot papers. This section applies to pre-poll ordinary voting.

Sections 200DG, 200DI, 221, 229 - Issuing of votes - flexibility in the questions to ascertain a person’s entitlement to vote

153.      Part XVA of the Electoral Act deals with issuing of votes by pre-poll voting officers. The Electoral Act specifies three prescribed questions that must be asked of a voter claiming to vote in order to ascertain their entitlement to vote:

(a)                What is your full name?

(b)                Where do you live?

(c)                Have you voted before in this election? or Have you voted before in these elections? (as the case requires)

154.      If the issuing officer is satisfied, the voter must then be provided with a ballot paper and their name will be marked off the certified list or electronic certified list.

155.      The Bill makes amendments which enable the voting officer to ask the person claiming to vote questions to ascertain the person’s full name, place of living and whether the person has previously voted in the election, rather than a specifying the form of questions that must be asked in a prescribed order. Flexibility in the wording of the questions to elicit the same information means the questions can be adapted to local conditions where necessary. For example in circumstances where a voter has a disability, where the voter may be experiencing loss of hearing, or where voters are from culturally and linguistically diverse backgrounds.

156.      As an example, the second prescribed question is “where do you live?” This question often elicits responses such as “here”, or the suburb or town the voter lives in. Being able to rephrase the question to, for example, “what is your address?” would enable the issuing officer to more quickly locate the voter on the certified list, and more easily ensure they were entitled to vote, improving both efficiency and integrity and enfranchisement.

157.      Another example is, instead of asking, “what is your full name?” it may be easier for an issuing officer to find an elector on the certified list if they start with “what is your last name” and then ask for the first name.

158.      A common response to the third prescribed question, “have you voted before in this election?” is “yes”, where the voter believes they are being asked if they have ever voted. Being able to re-phrase this question to ask “when was the last time you voted?” allows clarification to ensure that the person has not voted in the current election, and therefore is eligible to vote.

159.      Flexibility in the wording of the questions ensures there is not unintentional non-compliance with the Electoral Act where variations to questions occur. The amendment puts the required outcome (i.e. ascertaining a person’s entitlement to vote) as the focus of the interaction, rather than the exact wording.

160.      In practice, if a person cannot be located on a certified list, is already marked off or if there are concerns over their eligibility to vote, they will be referred to an officer in charge of the pre-poll voting centre. The voter will generally be provided the opportunity to complete a provisional declaration vote. The voter’s eligibility and entitlement to vote is then determined by staff at the divisional office.

161.      Item 56 repeals subparagraph 200DG(2)(b)(ii) and substitutes new subparagraph 200DG(2)(b)(ii). This amendment is consequential to the changes made to subsection 200DI(1) which allows the pre-poll voting officer to ask the voter questions to ascertain information about their identity and whether the person has voted before in the election, without prescribing the form of words that must be used.

162.      Item 57 repeals subsection 200DI(1) and substitutes new subsection 200DI(1). New subsection 200DI(1) gives the officer flexibility to ask questions to ascertain information regarding a person’s voting entitlement, rather than being required to ask specific prescribed questions to each person attending before that officer and claiming to vote.

163.      Item 58 makes a consequential amendment to subsection 200DI(2) to reflect the changes made to subsection 200DI(1).

Section 200DJ - Issuing votes - Remove prescribed sequence for name mark-off and ballot paper issue

164.      When ballot papers are issued to an elector, currently the Electoral Act requires the ballot paper to be issued first and then the officer marks-off the electors name from the certified list. While maintaining the requirement to both issue ballot papers and mark off the elector’s name from the certified list, the Bill removes the prescribed sequence, so there is no prescribed order between mark off and issue of the ballot paper. Provided both occur, the sequence is immaterial to maintaining the integrity of the vote.

165.      This will remove unnecessary prescription and allows flexibility in providing voting services in a polling place - whether a hard copy certified list or Electronic Certified Lists (electronic version of the Roll) is used.

166.      In practice the mark-off on paper lists occurs first before the ballot paper is issued, as the questions are asked and the voter located on the certified list. Electronic Certified Lists however were built on the logic from the Electoral Act - which means the vote is issued, then the Electronic certified list is marked.

167.      Item 59 amends subsection 200DJ(3) to remove the prescribed sequence of issuing an elector with ballot papers and marking off the elector’s name from the certified list.

168.      Item 60 makes a consequential amendment to paragraph 200DJ(3)(b) following the change to remove the sequence between ballot paper issue and marking the elector’s name off the certified list.

Section 200G - Pre-poll voting no longer required at divisional offices

169.      Items 61 , 62 and 63 are consequential amendments following the removal of the requirement for pre-poll voting to be available at divisional offices. Item 61 repeals subsection 200G(1) and Item 62 repeals paragraph 200G(2)(a). Item 63 makes a consequential amendment to subsection 200G(3).

170.      Following the amendments, only a pre-poll voting officer and an ARO at a place outside Australia will be subject to the requirements under section 200G.

Part XVB - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

171.      The Bill amends Part XVB of the Electoral Act to extend the electronically assisted voting method Part XVB Electoral Act, currently available to sight impaired people, to Australians working in Antarctica.

172.      Extending the existing electronically assisted voting mechanisms to Antarctic electors streamlines alternative voting arrangements. The regulation making power with respect to the electronically assisted voting method is extended to cover Antarctic electors and eligible unenrolled persons working in Antarctica. The Bill also allows the regulations to apply different processes to Antarctic electors and sight impaired electors, if necessary. Sight impaired electors may have different needs to electors who are in Antarctica, when it comes to registering for the service or casting their vote.

173.      The processes and availability of assisted voting for sight impaired persons is currently determined through the Electoral and Referendum Regulations 2016 (the Regulations) . Under the current the Regulations, sight impaired electors can register to vote by telephone through authorised call centres established by the Electoral Commissioner.

174.      These votes are treated in the same way as pre-poll ordinary votes. The Regulations put mechanisms in place to provide a degree of anonymity. Currently, voters do not need to give their name when they vote using the telephone voting service. Each voter is issued with a unique registration number and PIN at the time of registration which is used to mark their name off the electoral roll, ensuring the voter's identity remains secret.

175.      Once registered, the voter can vote through the authorised call centre. Due to the two-step process, the call centre operator does not know the voter’s identity, because they have called using registration details. The call centre operator reads the candidate options and the elector gives instructions on how they want their ballot paper to be marked.

176.      Under the current Regulations, there is a second person listening to each call to ensure that the call centre operator transcribes the elector’s preferences correctly on to the ballot paper. The caller is informed of this at the beginning of the call. In addition, scrutineers are permitted to attend the call centre to observe its operations as well as listen in to calls.

177.      Item 64 repeals the current heading of Part XVB of the Electoral Act and replaces it with “Part XVB - Electronically assisted voting”. The revision broadens the electronically assisted voting arrangements to provide for use by Antarctic electors.

178.      Item 65 and 66 make changes related to expanding the electronically assisted voting method to Antarctic electors.

179.      Item 67 inserts a new subsection 202AB(1A). The new subsection provides that the Regulations must provide for an electronically assisted voting method to be used by Antarctic electors when voting at federal electoral events. Part XVII required special arrangements to be made for Antarctic electors, through physical polling stations established at Australian Antarctic research stations (or ships in transit). New subsection 202AB(1A) replaces these arrangements with a requirement that an electronically assisted voting method be made available for Antarctic electors through regulations.

180.      Item 68 makes a consequential change to subsection 202AB(2) include reference to the new subsection 202AB(1A).

181.      Item 69 inserts a new subsection 202AB(6) to clarify that the regulations may apply different arrangements under the electronically assisted voting method for sight-impaired persons and Antarctic electors.

182.      Item 70 and 71 amend section 202AF and its heading to clarify that the Electoral Commissioner’s discretion not to use electronically assisted voting generally or at specified locations only applies with respect to sight impaired persons. Electronically assisted voting must be made available to Antarctic electors.

183.      Item 72 makes a consequential change to paragraphs 202A(2)(h) and (j) to remove Antarctic Returning Officer and Assistant Antarctic returning Officer from the list of officers.

Section 202B, 37 - Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

184.      The Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 inserted a new statutory authorisation in section 202B that allowed the Electoral Commissioner to authorise AEC staff members to perform DRO functions relating to the forwarding of declaration votes and preliminary scrutiny. New section 37 extends these changes, put in place ahead of the 2019 Federal election, to encompass all DRO and Assistant DRO duties and functions.

185.      Item 73 repeals section 202B. This is a consequential change following the insertion of the expanded statutory authorisation under new section 37.

Section 206 - Pencils in polling booths

186.      The Electoral Act requires pencils (and only pencils) to be provided in polling booths for use by voters. This prescriptiveness does not allow the AEC to explore other options which may be better, taking into account cost, useability and outcomes.

187.      The Bill amends the Electoral Act to allow other implements or methods of marking ballot papers to be provided in polling booths, including pens, pencils or other methods. This would allow the Electoral Commissioner to identify the most suitable and cost effective implement to be provided, taking into account local conditions as appropriate and factors such as budget, scanning (for counting Senate ballots), useability and potentially accommodating future developments in technology.

188.      Item 74 and Item 75 amend section 206 to allow for implements (other than pencils) or methods of marking ballot papers to be provided in polling booths. Item 75 broadens the provision in section 206 by replacing the reference to “shall be furnished with a pencil for the use of voters” with “must have an implement or method for voters to mark their ballot papers”.

Section 209B - Administrative marks on ballot papers

189.      The Electoral Act prescribes the form of the ballot paper and what can be printed on it. For example, the name of the relevant state/territory for the Senate election, the name of the division and state/territory for House of Representative elections; the ballot must be printed using only black type face, on a white background for the Senate, and on a green background for the House of Representatives. Currently the Electoral Act does not allow for any other markings, other than those prescribed, to be made on the ballot paper to assist with distinguishing one ballot paper from another.

190.      The Bill amends the Electoral Act to allow the Electoral Commissioner the flexibility to include administrative marks on ballot papers (before or after printing). The Electoral Commissioner may place distinguishing marks such as a word, colour, symbol or other printed mark on ballot papers, either before or after printing. This will allow for greater visual differentiation between ballot papers for different divisions, states and territories. This change does not affect the secrecy of the ballot.

191.      Examples of administrative marks may include a coloured mark, code, symbol, division name (for Senate ballot papers) or other features. A coloured mark or symbol for example would provide a visual indicator to minimise the chance of the incorrect ballot paper being given to a voter - particularly at pre-poll voting centres, or interstate voting centres on polling day, which issue votes for all divisions and states nationally.

192.      In pre-poll voting centres or polling places which issue ordinary ballots for multiple divisions, the same Senate ballot paper is provided to ordinary voters for all divisions within the state/territory. The ballot papers are required to be counted by division and results associated with the particular division. If the voter inadvertently places the ballot papers in the wrong divisional ballot box, a House of Representatives ballot paper can be identified and allocated to the correct division because the division name is printed on the ballot paper. However for a Senate ballot paper, it is impossible to determine which division it belongs to as all Senate ballot papers for a particular state/territory are the same. While overall Senate results are not affected, it makes it difficult to reconcile the Senate ballot papers to the correct division. This could be avoided by placing an administrative mark on the Senate ballot paper to associate it with a division at the point of issue. It will assist with counting at out-posted centres, where ballots from multiple divisions are sent for counting after polling night.

193.      Item 76 inserts new section 209B to allow the Electoral Commissioner to provide for a ballot paper to be marked with any other mark the Electoral Commissioner considers fit to assist in the administration of the election. A mark under this section does not need to be printed in black typeface. This does not interfere with the secrecy of the ballot. Subsection 209B(3) ensures that the Privacy Act 1988 has primacy over this section. Accordingly an administrative mark may not identify a voter or personal information of a voter (information such as gender, age, residential address).

194.      This amendment does not alter requirements in section 209 or alter provisions relating to the authenticity of the ballot paper, namely section 209A, which defines the official mark for the authentication of ballot papers.

Section 210 - Senate ballot paper format

195.      The Electoral Act requires the Senate ballot paper to have the candidate and political party printed opposite each box. The Bill allows the name of the candidate and political party to be printed “corresponding with” the box, not just strictly next to the box. For example this would permit the candidate and party to be printed below the box.

196.      This would allow the AEC to adjust the format of the Senate ballot paper, where needed, to accommodate additional groups or independent candidates, particularly where the ballot is approaching the maximum width of the paper. This gives the AEC more flexibility to produce a Senate ballot paper in a more manageable size and font for voters, as well as being compatible with the AEC’s scanning technology (currently all Senate ballot papers are electronically scanned for counting).

197.      In the last three general elections, most Senate ballot papers were more than one metre wide. The maximum width of a Senate ballot paper is 1018 mm. This is determined by limitations of paper size and printing technology. Due to the number of candidates and groups, in the last three general elections, ballot papers for most of the states were the maximum width. Once this occurs, in order to fit every candidate on the ballot paper, the size of the font shrinks, disadvantaging older and sight impaired voters. It is possible that, should more groups and candidates nominate, it would not be possible to produce a Senate ballot paper using the current format.

198.      Item 77 and item 78 amend subparagraphs 210(1)(f)(i) and 210(1)(f)(ii) respectively to allow for the square to correspond with the name of the relevant candidate, rather than appear strictly opposite the name of each candidate on the Senate ballot paper.

Section 200DG, 200DI, 221, 229 - Issuing of Votes - flexibility in the questions to ascertain a person’s entitlement to vote

199.      Item 79 makes a consequential amendment to subsection 221(3) by replacing the reference to “prescribed by” with “under”. This change is consequential to the amendments which enable the officer or official to ask the person claiming to vote questions to ascertain the person’s full name, place of living and whether the person has previously voted in the election or referendum, in place of a prescribed set of questions. Flexibility in the wording of the questions to elicit information to determine a person’s voting entitlement means the questions can be adapted to local conditions where necessary. For example in circumstances where a voter has a disability, where the voter may be experiencing loss of hearing, or where voters are from culturally and linguistically diverse backgrounds.

200.      Flexibility in the wording of the questions ensures there is not unintentional non-compliance with the Electoral Act where variations to questions occur. The amendment puts the required outcome (i.e. ascertaining a person’s entitlement to vote) as the focus of the interaction, rather than the exact wording.

Section 228 - Issuing of Votes - Allow for presiding officer and other polling place officials to assist with vote issuing and related processes

201.      Item 80 makes a consequential changes to section 228 of the Electoral Act. Item 80 inserts “or a polling official” after “the presiding officer”.  This relates to changes to make it clear that the presiding officer or a polling official assist in all aspects of vote issuing and related processes. This streamlines the process, and allows flexibility to spread the workload efficiently among the workforce present at the polling place.

Section 37, 202B, 228 - Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

202.      Item 81 removes reference to section 202B and replaces it with a reference to new section 37 of the Electoral Act. This is a consequential change following the insertion of the expanded statutory authorisation under new section 37.

Sections 200DG, 200DI, 221, 229, 231 - Issuing of votes - flexibility in the questions to ascertain a person’s entitlement to vote

203.      The Electoral Act specifies three prescribed questions that must be asked of a voter claiming to vote in order to ascertain their entitlement to vote:

(d)               What is your full name?

(e)                Where do you live?

(f)                 Have you voted before in this election? or Have you voted before in these elections? (as the case requires)

204.      If the issuing officer is satisfied, the voter must then be provided with a ballot paper and their name will be marked off the certified list or Electronic Certified List. The Bill amends these requirements to allow the officer or official to ask a person claiming to vote questions in order to ascertain information regarding their entitlement to vote (i.e. the person’s full name, place of living and whether they have already voted) rather than a set of specific questions in a prescribed order.

205.      The Bill makes amendments which make it clear that the presiding officer or polling official voting officer can ask the person claiming to vote questions to ascertain the person’s full name, place of living and whether the person has previously voted in the election or referendum, rather than a specifying the form of words that must be used. Flexibility in the wording of the questions to elicit the same information means the questions can be adapted to local conditions where necessary. For example in circumstances where a voter has a disability, where the voter may be experiencing loss of hearing, or where voters are from culturally and linguistically diverse backgrounds.

206.      As an example, the second prescribed question is “Where do you live?” This question often elicits responses such as “here”, or the suburb or town the voter lives in. Being able to rephrase the question to, for example, “What is your address?” would enable the issuing officer to more quickly locate the voter on the certified list, and more easily ensure they were entitled to vote, improving both efficiency and integrity and enfranchisement.

207.      Another example is, instead of asking, ‘What is your full name?’ It may be easier for an issuing officer to find an elector on the certified list if they start with ‘What is your last name’ and then ask for the first name.

208.      A common response to the third prescribed question, ‘Have you voted before in this election?’ is “yes”, where the voter believes they are being asked if they have ever voted. Being able to re-phrase this question to ask “When was the last time you voted?” allows clarification to ensure that the person has not voted in the current election, and therefore is eligible to vote.

209.      Flexibility in the wording of the questions ensures there is not unintentional non-compliance with the Electoral Act where variations to questions occur. The amendment puts the required outcome (i.e. ascertaining a person’s entitlement to vote) as the focus of the interaction, rather than the exact wording.

210.      Where there is an issue with a person’s eligibility to vote, these are escalated to the presiding officer to decide, as an appropriate senior polling place official. In practice, if a person cannot be located on a certified list, is already marked off or if there are concerns over their eligibility to vote, they will be referred to an officer in charge of the polling place. The voter will generally be provided the opportunity to complete a provisional declaration vote. The voter’s eligibility and entitlement to vote is then determined by staff at the divisional office.

211.      Item 82 repeals subsection 229(1) and substitutes a new subsection 229(1) so that a presiding officer or polling official may ask questions to ascertain information regarding the person’s entitlement to vote, without prescribing the specific questions that must be asked.

212.      Item 83 replaces the reference to “the presiding officer shall” in subsection 229(2) with “the officer or official must”. This makes it clear that the presiding officer or polling official can ask the person claiming to vote questions to ascertain the division for which the person is enrolled.

213.      Item 84 makes a consequential amendment to subsection 229(4) to reflect the changes made to subsection 229(1).

214.      Item 85 amends subsection 229(4) to make it clear that a presiding officer or polling official can ask questions to ascertain an elector’s entitlement to vote.

215.      Item 86 repeals subsection 229(5) and substitutes it with a new subsection which outlines that a person’s claim vote be rejected if:

(a)            the person refuses to answer any of the questions in subsection 229(1) or indicates that they have voted before in the relevant election(s);and

(b)           the presiding officer is satisfied that the person is not entitled to cast a vote.

216.      Where there is an issue with a person’s eligibility to vote, these are escalated to the presiding officer to decide, as an appropriate senior polling place official.

Section 230, 231 - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to ascertain entitlement to vote and assist with voting

217.      Item 87 is a consequential amendment to section 230 to include “a polling official” in the list of officers able to determine a person’s eligibility.

218.      Item 88 amends to subsection 231(1) to allow an “officer or official,” not just the presiding officer, to initial ballot papers being provided to each person claiming to vote.

219.      These amendments relate to changes to clarify that presiding officers and polling officials assist in all aspects of vote issuing.

Sections 200DG, 200DI, 221, 229, 231 - Issuing of votes - flexibility in the questions to ascertain a person’s entitlement to vote

220.      Item 89 makes a consequential amendment to paragraph 231(1)(a), by replacing the reference to “the prescribed questions” with a reference to “questions put to the person”, following changes to section 229.

Section 231, 232, 233, 234, 234A, 235, 238 - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to assist with voting

221.      Item 90 inserts “or a polling official” after “the presiding officer” in subsection 231(2). This relates to changes to make it clear that the presiding officer or a polling official assist in all aspects of vote issuing (ordinary and declaration votes). This streamlines the process, and allows flexibility to spread the workload efficiently among the workforce present at the polling place.

Section 232 - Issuing votes - Remove prescribed sequence for name mark-off and ballot paper issue

222.      Item 91 and Item 92 amend subsection 232(1) to remove the prescribed sequence of between issuing an elector’s ballot papers and then marking off an elector’s name from the certified list. Provided both occur, one after the other, the sequence is immaterial to maintaining the integrity of the vote. This increases flexibility in providing voter services at a polling place.

Section 232, 233, 234, 234A, 235, 238 - Issuing of Votes - Allow for presiding officer and other polling place officials to assist with voting and providing assistance to certain electors

223.      Items 93 to Item 121 amend the Electoral Act to make it clear that the presiding officer or a polling official can assist in all aspects of vote issuing (ordinary and declaration votes), including assisting certain people to vote, such as those with disabilities. This streamlines the process, and allows flexibility to spread the workload efficiently among the workforce present at the polling place.

224.      Item 93 amends subsection 232(2) to allow the presiding officer or polling official to make a record of declaration and absent votes cast. Item 93 and Item 94 make minor drafting updates to subsection 232(2) by changing references from “shall” to “must”.

225.      Item 95 amends subparagraph 233(1)(b)(ii) by inserting “or a polling official” after “presiding officer”.

226.      Item 96 amends subsection 233(2) of the Electoral Act to allow the presiding officer or a polling official to enclose each ballot paper of an absent voter in their declaration envelope.

227.      Item 97 to item 103 amend section 234 to allow polling officials as well as presiding officers to assist certain electors in casting and depositing their ballot papers, once they have satisfied the presiding officer that they need assistance to vote.

228.      Items 104 to item 111 amend section 234A allow polling officials as well as the presiding office to assist certain voters to vote outside the polling place, once they have satisfied the presiding officer that they are unable to enter the polling place because of physical disability, illness or other condition.

229.      Items 112 to item 117 amend section 235 to allow polling officials as well as the presiding officer to assist in relation to issuing provisional votes.

230.      Items 118 to item 121 amend subsection 238 to allow any voting officer, presiding officer or polling official to deal with spoilt ballot papers under that section.

Sections 210, 239 - Senate ballot paper format

231.      The Electoral Act requires the Senate ballot paper to have the candidate and political party printed opposite each box.

232.      Item 122 amends paragraphs 239(4)(b) and (c) to reflect that the name of the candidate and political party can be printed “corresponding with” the box, not just strictly next to the box, as a result of amendments to section 210(f)(i) and (ii). For example this permits the candidate and party to be printed under the box.

Part XVII - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

233.      The Bill amends the Electoral Act to extend the electronically assisted voting method in Part XVB Electoral Act, currently available only to sight impaired people, to Australians working in Antarctica.

234.      Item 123 repeals Part XVII of the Electoral Act (Special provisions relating to the polling in Antarctica). Part XVII is now redundant as electronically assisted voting under Part XVB of the Electoral Act replaces the special arrangements for polling in Antarctica formerly set out under Part XVII of the Electoral Act.

Section 268 - Informal ballot papers

235.      Items 124 is a consequential amendment following amendments to allow polling officials as well as presiding officers to assist in all aspects of vote issuing on polling day.

Section 210, 239, 268 - Senate ballot paper format

236.      The Electoral Act requires the Senate ballot paper to have the candidate and political party printed opposite each box.

237.      Item 125 makes a consequential amendment to paragraph 268(1)(c) and item 126 makes a consequential amendment to section 273(27). These amendments reflect that the name of the candidate and political party can now be printed “corresponding with” the box, not just strictly next to the box.

Section 323, 325 - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

238.      Item 127 makes a consequential change to section 323 following the repeal of Part XVII.

239.      Item 128 makes a consequential change to section 325 following the repeal of Part XVII.

240.      Item 129 repeals subsections 325(2) and 325(3). This is a consequential change following the repeal of Part XVII.

Sections 200BA, 200C, 200D, 200DD 340, 348- Pre-poll voting no longer available at divisional offices

241.      Item 130 to 133 amend section 340 and Item 134 repeals and substitutes paragraph 348(4)(c) to reflect that pre-poll voting is no longer available at the divisional offices, unless it is declared to be a pre-poll voting centre by the Electoral Commissioner under section 200BA.

Section 210, 239, 268, 351 - Senate ballot paper format

242.      Item 135 amends subparagraph 351(1)(b)(i) to allow the square on the Senate ballot paper to be printed to correspond with the name of the candidate, rather than opposite the name of the candidate. This is a consequential amendment reflecting the changes made to the Senate ballot paper format to allow the name of the candidate and political party to be printed “corresponding with” the box, for example underneath it, not just strictly next to the box.

Section 361- Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

243.      Item 136 and Item 137 make consequential changes to sections 361. These amendments follow the repeal of Part XVII. Antarctic electors may vote using electronically assisted voting under XVB of the Electoral Act.

Section 361- General provisions about enrolment related claims

244.             Item 138 and item 139 make consequential changes to subsection 382(1). These amendments follow the repeal of Part XVII.

Section 391 - Storage and destruction of enrolment claims

245.      State managers, who hold the statutory appointment of Australian Electoral Officer (AEO) (under s20, Electoral Act), are responsible for electoral activities within their state or territory.

246.      The Electoral Act currently requires the AEO in each state and the Northern Territory, and the Electoral Commissioner for the Australian Capital Territory (ACT), to approve the destruction and method for storing enrolment claims in that state/territory. (The Electoral Commissioner has the power with respect to the ACT as there is no permanent AEO for the ACT. An AEO is only appointed for the ACT during election periods.)

247.      This means the requirements for storage and destruction may vary from state to state. While this may reflect the approach in 1984, it is no longer consistent with how the AEC operates today. The AEC currently has a national process for scanning, quality assurance and destruction. The destruction portion of that process requires each of the AEO’s and the Electoral Commissioner to approve destruction of documents in a process the AEOs have no control over or influence on. Moving to a single decision point (Electoral Commissioner/delegate) better reflects the national delivery model of this process.

248.      The Bill amends subsection 391(1) of the Electoral Act so the Electoral Commissioner (or delegate), rather than the AEO in each state and the Northern Territory, will be responsible for approving the destruction of enrolment claims and the method of storing enrolment forms across all states and territories. The Electoral Commissioner can then delegate this function under the delegation power in section 28 to the area responsible building greater workforce flexibility and adaptability to evolving workforce practices and structures.

249.      Similar changes were made in the Electoral Legislation Amendment (Modernisation & Other Measures) Act 2019 with respect to nominations in Part XIV of the Act. Functions related to receiving nominations were shifted from the Divisional Returning Officer (DRO) and AEO to the Electoral Commissioner.  The Electoral Commissioner can delegate these functions to officials in appropriate positions to ensure that the AEC can manage a nationally-consistent approach.

250.      Item 140 repeals and substitutes subsection 391(1) which allows the Electoral Commissioner to approve the form of storage and destruction of claims for enrolment or transfer of enrolment.

Schedule 1 (Form E) - Senate Ballot Paper

251.      Item 141 repeals Form E from Schedule 1 in the Electoral Act and substitutes in the current version of the Senate Ballot Paper form. Consequential changes to footnotes one, three and four have been made to amend the ballot paper requirements to allow the name of the candidate and the party name or ‘Independent’ to be printed corresponding to the box, not just next to, or opposite the box.

252.      The current version of the Senate Ballot Paper form is set out in Schedule 3 to the Electoral and Referendum Regulation 2016 .

Schedule 3 - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

253.      Item 142 repeals paragraph 6(d) of Schedule 3 to the Electoral Act. This is a consequential change following the repeal of Part XVII of the Electoral Act. Antarctic electors may vote using electronically assisted voting under XVB of the Electoral Act.

 

Referendum (Machinery Provisions) Act 1984

254.      Schedule 1, Part 2 of the Bill amends various aspects of the voting and scrutiny process in the Electoral Act. Where relevant, these amendments to the Electoral Act are mirrored in the Referendum Act.

Subsection 3(1) - Definitions - expanding electronically assisted voting method to Antarctic electors

255.      The Bill extends electronically assisted voting process, currently available to sight impaired voters, to Australians working in Antarctica. This change removes Part V of the Referendum Act as the special arrangements currently in place for Antarctic electors will be replaced by the electronically assisted voting method under Part IVB of the Referendum Act.

256.      Item 143 repeals the definition of ‘Antarctic elector’ under subsection 3(1) and replace it with a revised definition. This is a consequential change following the extension of electronically assisted voting to Antarctic electors.

257.      Item 144 repeals the definitions of ‘Antarctic Returning Officer’ and ‘Assistant Antarctic Returning Officer’ under subsection 3(1) of the Referendum Act. As Antarctic electors will access electronically assisted voting, these positions are now redundant.

258.      Item 145 makes a consequential amendment to the definition of ‘officer’ under subsection 3(1) by removing the reference to an Antarctic Returning Officer and an Assistant Antarctic Returning Officer.

259.      Item 146 repeals the definitions of “research personnel” and “station” under subsection 3(1). This is a consequential change following the extension of electronically assisted voting to Antarctic electors.

260.      Item 147 repeals subsections 3(6) and 3(7) in the Referendum Act. This is a consequential change following the extension of electronically assisted voting to Antarctic electors.

Section 6A, 16B - Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

261.      Item 148 inserts a new section 6A. The statutory authorisation in section 6A allows the Electoral Commissioner to devolve any duties or functions of the Divisional Returning Officer (DRO) or the Assistant Divisional Returning Officer (Assistant DRO) to other AEC staff members. This allows for centralisation of processes, efficient allocation of resources, and sharing of the DRO and Assistant DRO’s workload during peak times.

262.      The Referendum Act confers a range of functions and duties on DROs with respect to electoral processes conducted within their division.

263.      The Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 inserted a new statutory authorisation that allowed the Electoral Commissioner to authorise AEC staff members to perform DRO functions relating to the forwarding of declaration votes and preliminary scrutiny.

264.      New section 6A extends these changes, put in place ahead of the 2019 Federal election, to encompass all DRO and Assistant DRO duties and functions. This will allow the AEC to manage workload and responsibilities more efficiently and in line with priorities while maintaining the same service level and integrity standards. It also recognises that it is not possible for the DRO to personally undertake the activities at the volumes required. For example, votes are not always counted in each individual division, out-posted centres are established where several divisions’ activities are managed together in one place.

265.      The workforce structure in the Referendum Act reflects, in parts, an outdated AEC workforce structure. It is no longer consistent with how the AEC operates, or needs to operate today. This amendment builds greater workforce flexibility and allows the AEC to devolve powers and functions in line with evolving workforce practices, structures and priorities.

Section 16A - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

266.      Item 149 is a consequential amendment to remove the reference to an Antarctic Returning Officer and an Assistant Antarctic Returning Officer in paragraphs  16A(2)(h) and (j). As Antarctic electors will access electronically assisted voting, these positions are now redundant.

Section 16B, 6A - Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

267.      The Electoral Legislation Amendment (Modernisation and Other Measures) Act 2019 inserted a new statutory authorisation in section 16B that allowed the Electoral Commissioner to authorise AEC staff members to perform DRO functions relating to the forwarding of declaration votes and preliminary scrutiny. New section 6A extends these changes, put in place ahead of the 2019 Federal election, to encompass all DRO and Assistant DRO duties and functions.

268.      Item 150 repeals section 16B. This is a consequential change following the insertion of the expanded statutory authorisation under new section 6A.

Section 20 - Pencils in polling booths

269.      The Referendum Act requires pencils (and only pencils) to be provided in polling booths for use by voters. This prescriptiveness does not allow the AEC to explore other options which may be better, taking into account cost, useability and outcomes.

270.      The Bill amends the Referendum Act to allow other implements or methods of marking ballot papers to be provided in polling booths, including pens, pencils or other methods of marking a ballot paper. This would allow the Electoral Commissioner to identify the most suitable and cost effective implement to be provided, taking into account local conditions as appropriate and factors such as budget, useability and potentially accommodating future developments in technology.

271.      Item 151 and item 152 amend section 20 to allow for implements (other than pencils) or methods of marking ballot papers to be provided in polling booths. Item 152 broadens the provision in section 20 by replacing the reference to “shall be furnished with a pencil for the use of voters” with “must have an implement or method for voters to mark their ballot papers”.

Section 25 - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to ascertain entitlement to vote and assist with voting

272.      Item 153 makes a consequential changes to paragraph 25(3)(a) of the Referendum Act. This relates to changes to make it clear that the presiding officer or a polling official assist in all aspects of vote issuing, including assisting certain people to vote, such as those with disabilities. This streamlines the process, and allows flexibility to spread the workload efficiently among the workforce present at the polling place.

Section 25B - Administrative marks on ballot papers

273.      The Referendum Act prescribes the form of the ballot paper and what can be printed on it. Currently the Referendum Act does not allow for any other markings, other than those prescribed, to be made on the ballot paper to assist with distinguishing one ballot paper from another.

274.      The Bill amends the Referendum Act to allow the Electoral Commissioner the flexibility to include administrative marks on ballot papers (before or after printing). The Electoral Commissioner may place distinguishing marks such as a word, colour, symbol or other printed mark on ballot papers, either before or after printing. This will allow for greater visual differentiation between ballot papers for different divisions, states and territories. This change does not affect the secrecy of the ballot.

275.      Examples of administrative marks may include a coloured mark, code, symbol, division name or other features. A coloured mark or symbol for example would provide a visual indicator to minimise the chance of the incorrect ballot paper being given to a voter - particularly at pre-poll voting centres, or interstate voting centres on polling day, which issue votes for all divisions and states nationally. 

276.      Item 154 inserts new section 25B to allow the Electoral Commissioner to provide for a ballot paper to be marked with any other mark the Electoral Commissioner considers fit to assist in the administration of the referendum. A mark under this section does not need to be printed in black typeface. This does not interfere with the secrecy of the ballot. Subsection 25B(3) ensures that the Privacy Act 1988 has primacy over this section. Accordingly an administrative mark may not identify a voter or personal information of a voter (information such as gender, age and residential address).

277.      This amendment does not alter provisions relating to the authenticity of the ballot paper, namely section 25A which defines the official mark for the authentication of ballot papers.

Section25, 26 - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to ascertain entitlement to vote and assist with voting

278.      Item 155 amends subsection 26(1). This amendment relate to changes to clarify that presiding officers and polling officials assist in all aspects of vote issuing.

Section 30, 31 - Issuing of votes - flexibility in the questions to ascertain a person’s entitlement to vote

279.      The Referendum Act specifies three prescribed questions that must be asked of a voter claiming to vote in order to ascertain their entitlement to vote:

(a)                What is your full name?

(b)                Where do you live?

(c)                Have you voted before in this referendum? or Have you voted before in these referendums? (as the case requires)

280.      If the issuing officer is satisfied, the voter must then be provided with a ballot paper and their name will be marked off the certified list or Electronic Certified List. The Bill amends these requirements to allow the officer or official to ask a person claiming to vote questions in order to ascertain information regarding their entitlement to vote (i.e. the person’s full name, place of living and whether they have already voted) rather than a set of specific questions in a prescribed order.

281.      The Bill makes amendments which make it clear that the presiding officer or polling official voting officer can ask the person claiming to vote questions to ascertain the person’s full name, place of living and whether the person has previously voted in the election or referendum, rather than a specifying the form of words that must be used. Flexibility in the wording of the questions to elicit the same information means the questions can be adapted to local conditions where necessary. For example in circumstances where a voter has a disability, where the voter may be experiencing loss of hearing, or where voters are from culturally and linguistically diverse backgrounds.

282.      As an example, the second prescribed question is “where do you live?” This question often elicits responses such as “here”, or the suburb or town the voter lives in. Being able to rephrase the question to, for example, “what is your address?” would enable the issuing officer to more quickly locate the voter on the certified list, and more easily ensure they were entitled to vote, improving both efficiency and integrity and enfranchisement.

283.      Another example is, instead of asking, “what is your full name?” it may be easier for an issuing officer to find an elector on the certified list if they start with “what is your last name” and then ask for the first name.

284.      A common response to the third prescribed question, “have you voted before in this referendum?” is “yes”, where the voter believes they are being asked if they have ever voted. Being able to re-phrase this question to ask “when was the last time you voted?” allows clarification to ensure that the person has not voted in the current referendum, and therefore is eligible to vote.

285.      Flexibility in the wording of the questions ensures there is not unintentional non-compliance with the Referendum Act where variations to questions occur. The amendment puts the required outcome (i.e. ascertaining a person’s entitlement to vote) as the focus of the interaction, rather than the exact wording.

286.      Where there is an issue with a person’s eligibility to vote, these are escalated to the presiding officer to decide, as an appropriate senior polling place official. In practice, if a person cannot be located on a certified list, is already marked off or if there are concerns over their eligibility to vote, they will be referred to an officer in charge of the polling place. The voter will generally be provided the opportunity to complete a provisional declaration vote. The voter’s eligibility and entitlement to vote is then determined by staff at the divisional office.

287.      Item 156 repeals subsection 30(1) and substitutes a new subsection 30(1) so that a presiding officer or polling official may ask questions to ascertain information regarding the person’s entitlement to vote, without prescribing the specific questions that must be asked.

288.      Item 157 replaces the reference to “the presiding officer shall” in subsection 30(2) with “the officer or official must”. This makes it clear that the presiding officer or polling official can ask the person claiming to vote questions to ascertain the division for which the person is enrolled.

289.      Item 158 makes a consequential amendment to subsection 30(4) to reflect the changes made to subsection 30(1).

290.      Item 159 amends subsection 30(4) to make it clear that a presiding officer or polling official can ask questions to ascertain an elector’s entitlement to vote.

291.      Item 160 repeals subsection 30(5) and substitutes it with a new subsection which outlines that a person’s claim to vote be rejected if:

(a)            the person refuses to answer any of the questions in subsection 30(1) or indicates that they have voted before in the relevant election(s);and

(b)           the presiding officer is satisfied that the person is not entitled to cast a vote.

292.      Where there is an issue with a person’s eligibility to vote, these are escalated to the presiding officer to decide, as an appropriate senior polling place official.

293.      Items 161 repeals subsections 31(2) and 31(3), and replaces it with new subsections 31(2) and 31(3). Section 31 deals with questions to be put to the voter to determine their entitlement to vote where an election and a referendum are held on the same day. These amendments are consequential to the changes to section 30. The person’s claim to vote must be rejected where presiding officer is satisfied that the person is not entitled to cast a vote. Where there is an issue with a person’s eligibility to vote, these are escalated to the presiding officer to decide, as an appropriate senior polling place official.

Section 25, 26, 32, 33 - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to ascertain entitlement to vote and assist with voting

294.      Item 162 inserts “or a polling official” after “the presiding officer” in subsection 32(1). Item 163 amends subsection 33(1) to allow either a presiding officer or an official to initial a ballot paper. Item 164 inserts “or polling official” after “a presiding officer” in subsection 33(2).

295.      These amendments relate to changes to make it clear that the presiding officer or a polling official can assist in all aspects of vote issuing. This streamlines the process, and allows flexibility to spread workload efficiently among the polling place workforce.

Section 34 - Issuing votes - Remove prescribed sequence for name mark-off and ballot paper issue

296.      When ballot papers are issued to an elector, currently the Referendum Act requires the ballot paper to be issued first and then the officer marks-off the electors name from the Roll. While maintaining the requirement to both issue ballot papers and mark off the elector’s name from the certified list, the Bill removes the prescribed sequence, so there is no prescribed order between mark off and issue of the ballot papers. Provided both occur, the sequence is immaterial to maintaining the integrity of the vote.

297.      This will remove unnecessary prescription and allows flexibility in providing voting services in a polling place - whether a hard copy certified list or Electronic Certified Lists is used.

298.      In practice the mark-off on paper lists occurs first before the ballot is issued, as the questions are asked and the voter located on the certified list. Electronic Certified Lists however were built on the logic from the Referendum Act - which means the vote is issued, then the Electronic Certified List is marked.

299.      Item 165 and item 166 amends subsection 34(1) to remove the prescribed sequence of issuing an elector with ballot papers and marking off the elector’s name from the certified list. This increases flexibility in providing voter services at a polling place.

Section 25, 26, 32, 33, 36, 36A - Issuing of Votes - Allow for presiding officer and other polling place officials to ask questions to ascertain entitlement to vote and assist with voting

300.      Item 167 makes a consequential amendment to subsection 34(2). This relates to changes to make it clear that the presiding officer or a polling official assist in all aspects of vote issuing.

301.      Item 167 and 168 makes minor drafting updates to subsection 34(2) by changing the references from “shall” to “must” .

302.      Items 169 to item 174 amend section 36 to allow polling officials as well as presiding officers to assist certain electors in casting and depositing their ballot papers, once they have satisfied the presiding officer that they need assistance to vote.

303.      Items 175 to item 182 amend section 36A to allow polling officials as well as the presiding office to assist certain voters to vote outside the polling place, once they have satisfied the presiding officer that they are unable to enter the polling place because of physical disability, illness, or other condition.

304.      Items 183 to item 188 amend section 37 to allow polling officials as well as the presiding officer to assist in relation to issuing provisional votes.

305.      Items 189 to item 192 amend subsection 41 of the Referendum Act to allow any voting officer, presiding officer or polling official to deal with spoilt ballot papers under that section.

Section 46, 46A- Workforce flexibility - Statutory Authorisation - Divisional Returning Officer functions and duties

306.      Items 193 to item 196 amend section 46 and 46A of the Referendum Act to make it clear that the presiding officer or a polling official can assist in all aspects of vote issuing.

Section 61 - The dispatch of postal votes

307.      Section 61 of the Referendum Act contains prescriptive requirements regarding the delivery of postal voting material to electors who have applied for a postal vote. Section 6 contains instructions for the Electoral Commissioner or Assistant Returning Officer (ARO) with respect to sending postal voting material to the applicant. The instructions differ depending on when the application for a postal vote is received.

308.      Items 197 and item 198 of the Bill amend section 61 of the Referendum Act to streamline requirements regarding dispatch of postal votes. New subsection 61(2) replaces the prescriptive instructions with a general requirement that postal voting material must be sent by the means considered by the Electoral Commissioner or the ARO to be the most reasonable and practicable in the circumstances - provided the application is received before the deadline for postal vote applications, that is, at or before 6pm on the Wednesday that is 3 days before polling day in the referendum.

309.      This will simplify the provision and remove unnecessary prescription and complexity. However, there is no adjustment to the delivery method or approach for postal voting as a consequence of these changes. In most instances, the delivery method is through Australia Post. However the AEC will consider alternative methods open to it (such as a courier) where it is reasonable and practicable to do so. These methods may be considered due to timeframes (for example, closer to election day) or due to local considerations. Postal voting material is not sent via electronic communication, such as fax or email. The Electronic Transactions Act 1999 does not apply to dispatch of postal voting material.

310.      This will not change the existing delivery methods or extend to electronic means, such as email. While voters can apply on-line for a postal vote, voting itself remains a paper based process.

Sections 73AA, 73A, 73B, 73CC, 73C - Pre-poll voting no longer required at divisional offices

311.      The Bill removes the requirement for pre-poll voting to be available at divisional offices.

312.      The number of people voting early continues to increase each election. Divisional office are working offices and are generally not suitable for large volumes of early voters. Most divisional offices are not designed or staffed to issue large volumes of pre-poll votes, and are not always easily accessible to the general public. In addition, there is no longer a divisional office physically located within every division. Pre-poll voting centres are generally located at premises with sufficient space (for voters and volunteers), security provisions, are public facing and accessible to voters. These centres are set up specifically to cater for pre-poll voters - generally offering a much better voter experience.

313.      This change would not prevent a divisional office from being declared a pre-poll voting centre where this is the best location to provide the service. At the 2019 Federal election, pre-poll votes cast at divisional offices accounted for less than one per cent of all pre-poll votes cast. Pre-poll voting will be available at advertised pre-poll voting offices declared by the Electoral Commissioner under section 73AA of the Electoral Act. Arrangements for issuing pre-poll votes in places outside Australia will remain unchanged.

314.      Item 199 amends the note under subsection 73AA(1A) by omitting the reference to the divisional office as a location where pre-poll voting must be available.

315.      Item 200 repeals paragraph 73A(1)(a) which removes the option for an application for a pre-poll vote to be made to any DRO.

316.      Item 201 repeals subsection 73B(1) which removes the option for an application for a pre-poll vote to a DRO to be made at the office of the DRO during ordinary office hours or during the hours of polling on polling day.

317.      Item 202 omits the reference to a DRO in the definition of voting officer at section 73CC.

318.      Item 203 makes a consequential amendment to paragraph 73CD(1)(b).

319.      Item 204 repeals paragraph 73CD(1)(c) as pre-poll ordinary voting will no longer be available at divisional offices.

 

Sections 20, 73CE - Pencils in polling booths

320.      The Referendum Act requires pencils (and only pencils) to be provided in pre-poll voting booths for use by voters. This prescriptiveness does not allow the AEC to explore other options which may be better, taking into account cost, useability and outcomes.

321.      The Bill amends the Referendum Act to allow other implements or methods of marking ballot papers to be provided in polling booths, including pens, pencils or other methods. This would allow the Electoral Commissioner to identify the most suitable and cost effective implement to be provided, taking into account local conditions as appropriate and factors such as budget, useability and potentially accommodating future developments in technology.

322.      Item 205 omits the requirement for each voting compartment to be provided with a pencil, and instead inserts a general requirement that each compartment must have an implement or method for voters to mark their ballot paper.

Section 73CG - Issuing of Votes - flexibility in the questions to ascertain a person’s entitlement to vote

323.      Item 206 amends subsection 73CG(2). This reflects changes allowing vote issuing officers the flexibility to ask questions of the person claiming to vote to elicit information to ascertain their entitlement to vote (i.e. the person’s full name, place of living and whether they have already voted) rather than a set of specific questions in a prescribed order.

324.      Items 207 to item 209 amend subsections 73CI(1), 73CI(2) and 73CI(4) to enable the officer or official to ask the person claiming to vote questions to ascertain the person’s full name, place of living and whether the person has previously voted in the election or referendum, in place of a prescribed set of questions. Flexibility in the wording of the questions to elicit information to determine a person’s voting entitlement means the questions can be adapted to local conditions where necessary. For example in circumstances where a voter has a disability, where the voter may be experiencing loss of hearing, or where voters are from culturally and linguistically diverse backgrounds.

Section 73CJ - Issuing votes - Remove prescribed sequence for name mark-off and ballot paper issue

325.      Item 210 and Item 211 amend subsection 73CJ(3) to remove the prescribed sequence of between issuing an elector’s ballot papers and then marking off an elector’s name from the certified list. Provided both occur, one after the other, the sequence is immaterial to maintaining the integrity of the vote. This increases flexibility in providing voter services at a polling place.

Sections 73AA, 73A, 73B, 73CC, 73C, 73F - Pre-poll voting no longer required at divisional offices

326.      Items 212, 213, and 214 makes consequential amendments to section 73F as a result of changes made to divisional offices as pre-poll voting centres. The amendments to section 73F remove the DRO from the list of officials responsible for the issuing of ballot papers.

Part IVB - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

327.      The Bill amends Part IVB of the Referendum Act to extend the electronically assisted voting method (Part V Referendum Act), currently available to sight impaired people, to Australians working in Antarctica.

328.      Extending the existing electronically assisted voting mechanisms to Antarctic electors streamlines alternative voting arrangements. The regulation making power with respect to the electronically assisted voting method is extended to cover Antarctic electors. The Bill also allows the regulations to apply different processes to Antarctic electors and sight impaired electors, if necessary. Sight impaired electors may have different needs to electors who are in Antarctica, when it comes to casting their vote.

329.      The processes and availability of assisted voting for sight impaired persons is currently determined through the Electoral and Referendum Regulations 2016 (the Regulations) . Under the current Regulations, sight impaired electors can register to vote by telephone through authorised call centres established by the Electoral Commissioner.

330.      These votes are treated in the same way as pre-poll ordinary votes. The Regulations put mechanisms in place to provide a degree of anonymity. Currently, voters do not need to give their name when they vote using the telephone voting service. Each voter is issued with a unique registration number and PIN which is used to mark their name off the electoral roll, ensuring the voter's identity remains secret.

331.      Once registered, the voter can vote through the authorised call centre. Due to the two-step process, the call centre operator does not know the voter’s identity, because they have called using registration details. The call centre operator reads the candidate options and the elector gives instructions on how they want their ballot paper to be marked.

332.      Under the current Regulations, there is a second person listening to each call to ensure that the call centre operator transcribes the elector’s preferences correctly on to the ballot paper. The caller is informed of this at the beginning of the call. In addition, scrutineers are permitted to attend the call centre to observe its operations as well as listen in to calls.

333.      Item 215 repeals the current heading of Part IVB of the Referendum Act and replaces it with “Part IVB - Electronically assisted voting”.

334.      Item 216 inserts new section 73LA which extends the electronically assisted voting method to Antarctic electors.

335.      Item 217 make changes to the heading for section 73M related to expanding the electronically assisted voting method to Antarctic electors.

336.      Item 218 make changes related to expanding the electronically assisted voting method to Antarctic electors.

337.      Item 219 inserts a new subsection 73M(1A). The new subsection provides that the Regulations must provide for an electronically assisted voting method to be used by Antarctic electors when voting at referendums. New subsection 73M(1A) replaces the current arrangements with a requirement that an electronically assisted voting method be made available for Antarctic electors through the Regulations.

338.      Item 220 makes a consequential change to subsection 73M(3) to include a reference to the new subsection 73M(1A).

339.      Item 221 inserts a new subsection 73M(7) to clarify that the regulations may apply different arrangements under the electronically assisted voting method for sight-impaired persons and Antarctic electors.

340.      Items 222 and item 223 amend section 73QA and its heading to clarify that the Electoral Commissioner’s discretion not to use electronically assisted voting generally or at specified locations only applies with respect to sight impaired persons. Electronically assisted voting must be made available to Antarctic electors.

341.      Item 224 repeals Part V of the Referendum Act (Special provisions relating to voting in Antarctica at a referendum). Part V is now redundant as electronically assisted voting under Part IVB of the Referendum Act replaces the special arrangements for voting in Antarctica formerly set out under Part V of the Referendum Act.

Section 93 Informal ballot papers

342.      Item 225 makes a consequential amendment to section 93 following amendments to allow polling officials as well as presiding officers to assist in all aspects of vote issuing on polling day.

Part IVB - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors

343.      Items 226 and item 227 are consequential amendments following the repeal of Part V. Antarctic electors may vote using electronically assisted voting under IVB of the Referendum Act.

344.      Items 228 makes a consequential amendment following the repeal of Part V. Antarctic electors may vote using electronically assisted voting under IVB of the Referendum Act.

345.      Item 229 and item 230 make consequential amendments to section 118 following the repeal of Part V. Antarctic electors may vote using electronically assisted voting under IVB of the Referendum Act.

Sections 73AA, 73A, 73B, 73CC, 73C, 131 - Pre-poll voting no longer available at divisional offices

346.      Item 231 to 234 amend section 131 to reflect that pre-poll voting is no longer available at the divisional offices, unless it is declared to be a pre-poll voting centre by the Electoral Commissioner under section 73AA of the Referendum Act.

347.      Item 235 repeals and substitutes paragraph 134(1)(c) to reflect that pre-poll voting is no longer available at divisional offices, unless it is declared to be a pre-poll voting centre by the Electoral Commissioner under section 73AA of the Referendum Act.

Schedule 4 - Electronically assisted voting - Expanding electronically assisted voting method to Antarctic electors and unenrolled persons working in Antarctica

348.      Item 236 repeals paragraph 6(d) of Schedule 4 to the Referendum Act. This is a consequential change following the repeal of Part V of the Referendum Act. Antarctic electors may vote using electronically assisted voting under IVB of the Referendum Act.

Part 2, Schedule 1 of the Bill - Application Provision - Item 237

349.      Item 237 clarifies amendments in Part 2, Schedule 1 to the Bill apply on and after commencement of item 237 .

SCHEDULE 2 - Amendments relating to a Redistribution Committee for the Australian Capital Territory

Part 1 - Amendments

350.      Currently, section 60 of the Electoral Act requires the senior Divisional Returning Officer (DRO) for the Australian Capital Territory (ACT) to be a member of the Redistribution Committee. Apart from the ACT, all jurisdictions require an Australian Electoral Officer (AEO) to be a member of the Redistribution Committee. Unlike other jurisdictions there is no permanent AEO for the ACT, an AEO for the ACT is only appointed for election periods. The consequence of this is that the ACT has a more junior member on the Redistribution Committee (the senior DRO) compared to other jurisdictions.

351.      Staff for the ACT divisions are currently co-located in the AEC’s National Office, with a small team. There is not a dedicated ACT state/territory office, as in other jurisdictions. Currently, section 60 of the Electoral Act requires the senior DRO for the ACT to be a member of the Redistribution Committee. A redistribution significantly increases workload for the DRO, which is exacerbated if a redistribution coincides with an election.

352.      It is proposed that, in place of the senior DRO, a senior Australian Electoral Commission staff member, such as a staff member with local knowledge, be appointed to the Redistribution Committee. The ACT staff member would be a more senior position than the senior DRO, which is consistent with the other states and Northern Territory. This may allow appointment of an officer with broader knowledge of electoral systems and law than the senior DRO may necessarily have, consistent with the capabilities of other AEC staff who serve on a Redistribution Committee.

353.      Item 1 repeals paragraph 60(7A)(b) and replaces it with a new paragraph which states that references to the Australian Electoral Officer in paragraph 2(b) are read as a reference to “the member of the staff of the Electoral Commission appointed under subsection 60(7B)”.

354.      Item 2 repeals subsection 60(7B) and replaces it with a new subsection which requires the Electoral Commissioner to appoint, in writing, a member of the staff of the Electoral Commission to act as a member of the Redistribution Committee for the Australian Capital Territory.

355.      Item 3 is a consequential change to those amendments made by Item 1 . This item amends subsection 62(4) to provide that at meetings of the Redistribution Committee for the Australian Capital Territory, where the Electoral Commissioner is not present, the member of the Redistribution Committee appointed by subsection 60(7B) will preside.

356.      Item 4 relates to suggestions and comments for a redistribution. The item amends subsection 64(1) to include a new paragraph (c) which allows for the submission of a suggestion or comment at an office specified in the notice, but it not limited to this lodgement method.

357.      Item 5 is a consequential change to those amendments made by Item 1 . The Bill amends paragraph 64(3)(b) to provide for submissions and comments to a redistribution of the ACT being received by the office specified in the notice.

358.      Item 6 is a consequential change to those amendments made by Item 1 . The Bill repeals paragraph 69(5)(b) and replaces it with a new paragraph 69(5)(b) which provides for the objections to the redistribution being made available at the office specified in the notice under subsection 64(1).

359.      Item 7 is a consequential change to those amendments made by Item 1 . Paragraph 76(16A)(c) is amended to remove the reference to the senior DRO being a member of the Redistribution Committee for the Australian Capital Territory when a mini redistribution is trigger and is replaced by the member of the staff of the Electoral Commission appointed under subsection 60(7B).

Schedule 2 - Part 2 - Application and transitional provisions

360.      Item 8 outlines the application and transitional provisions for the amendments made by the Bill to Part IV of the Electoral Act in relation to:

(a)            a redistribution for the Australian Capital Territory (ACT) that commences on or after the commencement of this Schedule; and

(b)           a redistribution for the ACT that has commenced but has not been completed before the commencement of this Schedule (a pre-commencement redistribution for the ACT).

361.      The amendments do not affect anything conducted before the commencement of this Schedule under Part IV of the Electoral Act in relation to a pre-commencement redistribution for the ACT.

362.      The member of the staff of the Electoral Commission appointed under subsection 60(7B) of the Electoral Act on or after the commencement of this Schedule for a pre-commencement redistribution of the ACT becomes a member of the Redistribution Committee for the ACT at the time of the nomination.