2019-2020-2021-2022

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

ELECTORAL LEGISLATION AMENDMENT (COVID ENFRANCHISEMENT) BILL 2022

                                                                                                               

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Special Minister of State,

the Hon Ben Morton MP)

 

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

Abbreviation	Definition
AEC	Australian Electoral Commission
Bill	Electoral Legislation Amendment (COVID Enfranchisement) Bill 2022
Electoral Act	Commonwealth Electoral Act 1918
Item	Refers to an item in the Bill
ICCPR	International Covenant on Civil and Political Rights
Therapeutic Goods Administration	TGA

 

 

 

ELECTORAL LEGISLATION AMENDMENT (COVID ENFRANCHISEMENT) BILL 2022

GENERAL OUTLINE

The Electoral Legislation Amendment (COVID Enfranchisement) Bill 2022 (the Bill) amends the Electoral Act to provide for contingency arrangements to enable electors in mandatory isolation or quarantine due to COVID-19 and therefore unable to attend a polling place during the final 72 hours before polling to participate in the upcoming federal election.

The Bill amends Part XVB of the Electoral Act to allow regulations to be made to expand the existing secure telephone voting method available for sight impaired persons and Antarctic voters to voters directed to self-isolate or quarantine under a public health order, and who are therefore unable to attend a polling place. Current regulations allow for a secure two-stage telephone voting system to preserve the secrecy of the ballot.

Access to this service is limited to some or all persons in Australia that are subject to a public health order preventing attendance at a polling place and who have:

·          tested positive for COVID-19 using a test approved by the TGA or are a close contact, household contact, or household-like contact of such an individual; or

·          have been otherwise directed to self-isolate or quarantine under a public health order due to the risk of transmission of COVID-19.

These regulations can come into operation through a legislative instrument, in circumstances where the Electoral Commissioner is satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of an election for secure telephone voting to be used by individuals in Australia who are coronavirus affected.

This voting method can only be made available in a limited time window, after the person is no longer eligible to apply for a postal vote (from 6.01pm on the Wednesday 3 days before polling day) until the close of polls.

Before making such a legislative instrument, the Electoral Commissioner would be required to notify the Prime Minister and the Leader of the Opposition in writing, and any instrument must also be published on the AEC website.

The amendments made by the Bill are temporary measures and will automatically repeal on 31 December 2022.

These measures build on established frameworks within the Electoral Act for the use of temporary powers by the Electoral Commissioner in emergency situations, and utilise the existing voting mechanism of secure telephone voting in these limited circumstances.

FINANCIAL IMPACT STATEMENT

The financial impact of the Bill is unable to be quantified in advance of the election as it will be contingent on the level of required usage of the service, if any.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

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

 

Statement of Compatibility with Human Rights

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

Electoral Legislation Amendment (COVID Enfranchisement) Bill 2022

The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Human rights implications

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

·          the right to political participation under Article 25.

 

1.     The Bill will engage the right of citizens to take part in public affairs and elections under Article 25 of the ICCPR, as this Bill supports the rights of Australian voters to participate in federal elections amidst the COVID-19 pandemic.

 

2.     Under the Electoral Act, some Australians may vote through special arrangements (Part XVB).  The Bill temporarily expands the existing electronically assisted voting methods, which are currently only available to sight-impaired voters and Australian electors working in Antarctica. This is consistent with the Article 25 of the ICCPR.

 

3.     An expansion of the use of secure telephone voting would enable voters in COVID-19 related isolation or quarantine the ability to cast their vote, in the limited 72-hour window prior to the close of polls, when they would not otherwise be eligible for other voting methods such as postal voting.

 

4.     This does not alter the enrolment or voting entitlement of electors who are coronavirus affected, it simply provides an additional method by which an individual’s voting entitlement can be exercised. Without these measures, Australians directed to self-isolate or quarantine under a public health order during this period would have limited opportunity to exercise their democratic franchise.

 

5.     As the Bill does not prevent Australian voters from exercising their right to vote in Australian electoral processes, it does not limit any of the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Therefore, the Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

ELECTORAL LEGISLATION AMENDMENT (COVID ENFRANCHISEMENT) BILL 2022

NOTES ON CLAUSES

Clause 1 - Short title

1.              Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (COVID Enfranchisement) Act 2022 (the Act).

Clause 2 - Commencement

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

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

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

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

Clause 3 - Schedules

6.              Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

 

 

Schedule 1 - Amendments

Commonwealth Electoral Act 1918

1.              Part XVB of the Electoral Act provides for electronically assisted voting.  The Bill expands this voting method, currently available to sight impaired electors and Australians working in Antarctica, to coronavirus affected individuals.

2.              The processes and availability of this voting method is determined through the Electoral and Referendum Regulations 2016 (Regulations).

3.              Under the current Regulations, voters who are eligible to vote using this method 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.

4.              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, to safeguard the secrecy of the ballot.

5.              Item 1 inserts a new definition in section 202AA for “electronically assisted voting method” to include a method prescribed for the purposes of subsection 202AB(1B) at Item 2 .

6.              Item 2 inserts new subsection 202AB(1B) after subsection 202AB(1A). The new subsection provides that the regulations may provide for a telephone voting method to be used by coronavirus affected individuals at Item 4 . This clarifies that this method of voting is not a form of computerised voting, but voting with the assistance of a telephone.

7.              Item 3 inserts new subsection 202AB(2A) to provide that existing subsection 202AB(2) applies to regulations regarding coronavirus affected individuals in the same way that the existing subsection applies to regulations regarding sight-impaired people and Antarctic electors.

8.              Item 4 inserts new subsection 202AB(7) to clarify that the regulations may apply different arrangements for coronavirus affected individuals, sight-impaired persons and Antarctic electors. This subsection has the effect of existing subsection 202AB(6) for sight-impaired persons and Antarctic electors. New subsection 202AB(7) is a new subsection for the purposes of ease of repeal at the end of 31 December 2022.

9.              Item 4 also inserts new subsection 202AB(8). This new subsection provides that existing section 202AE does not apply to a vote cast using a method prescribed for the purposes of subsection 202AB(1B). It also provides that the regulations may make provision for, or in relation to, how this Act applies in relation to such votes. This has the effect of enabling the regulations to specify how the Act is to apply to these votes, including that they may be treated differently to pre-poll ordinary votes as specified in 202AE. This may include specifications of circumstances and the order of admission of votes cast using this method.

10.          Item 5 inserts new section 202AFA at the end of Part XVB. This section provides the Electoral Commissioner with the power to determine that coronavirus affected individuals may use the secure telephone voting method prescribed in the Regulations for the purposes of subsection 202AB(1B) may be used by individuals in Australia.

11.          The Electoral Commissioner’s power to enliven the Regulations under new section 202AFA is limited to persons who:

·          have not previously voted in the election;

·          are coronavirus affected individuals during all or part of the period starting at 6.01 pm on the Wednesday that is 3 days before the polling day in the election and ending on close of the poll for the election; and

·          are in Australia.

12.          “All or part of the period” is in reference to the fact that an individual might only be a coronavirus affected individual for part of the period. For example, if an individual received a positive test result on the Thursday two days before polling day. An individual would only be eligible to access a secure telephone voting service during the period they meet the definition of a coronavirus affected individual in subsection 202AFA(2).

13.          A Note inserted at the end of new subsection 202AFA(1) alerts the reader that nothing in section 202AFA or in regulations made for the purposes of new subsection 202AB(1B) authorises any person to vote more than once at an election. The Note also draws the reader’s attention to subsection 202AB(5), which provides similarly.

14.          The legislative instrument enables a targeted, proportional response to COVID-19 concerns across each State and Territory during electoral events in 2022.

15.          The Bill establishes clear limits on the persons able to access telephone voting due to the circumstance of mandatory isolation or quarantine due to COVID-19, and the period for which it is available. The period of secure telephone voting would commence at 6.01pm on the Wednesday that is 3 days before the polling day in the election and end on the close of the poll for that election.

16.          This commencement of this period immediately follows the deadline for applications to vote using a postal vote, which must be received before 6pm on the Wednesday that is 3 days before the polling day.

17.          Voting, as both a constitutional right and a legislated duty, is fundamental to the concept of Australian citizenship. This appropriately limits the period in which coronavirus affected voters can access secure telephone voting to the final 72 hours of polling, after the deadline for postal vote applications. This therefore provides voters who may otherwise have no means of voting in the election with access to an alternate voting method and clarifies that secure telephone voting is not to be utilised where alternate voting options are available such as postal voting.

18.          New subsection 202AFA(2) defines a coronavirus affected individual for the purposes of secure telephone voting. A coronavirus affected individual is a person residing in a State or Territory during a period if a public health order of that State or Territory prevents the individual from attending a polling place (or polling booth) in that State or Territory during that period because:

·          the individual has tested positive for the coronavirus known as COVID-19 on a test approved by the TGA for that purpose;

·          the individual is a close contact, household contact or household-like contact of an individual that has tested positive to COVID-19 on a TGA approved test; or

·          the individual is otherwise directed to self-isolate or quarantine under the public health order due to the risk of transmission of COVID-19.

19.          An individual is taken to be prevented from attending a polling place by a public health order based on the outcome of the order on that individual, after consideration of other relevant laws of the Commonwealth and the State or Territory.

20.          The subsection also clarifies that only voters who are coronavirus affected individuals in Australia are able to access secure telephone voting. The existing voting methods, such as postal voting and select in-person voting, will continue to be available for electors who are overseas.

21.          The terms ‘close contact’, ‘household contact’, and ‘household-like’ contact are to be given their ordinary meaning within the context of public health orders and COVID-19. A public health order does not necessarily need to use these exact terms in order to enliven secure telephone voting, however the order must prevent the elector from attending a polling place. This is intended to allow for developments in COVID-19 terminology and cater for slight variations in terms used by the different States and Territories at different times. A ‘household-like’ contact may include support workers like disability carers, if the effect of a health order is that they must isolate with a coronavirus affected individual to provide continuity of essential care. However the term would not cover providers of door-to-door services like ‘meals on wheels’, as such persons are not prevented from using other means of voting.

22.          Under new subsection 202AFA, a person will be considered a coronavirus affected individual if they (or another to whom the individual is a close contact, household contact or household-like contact) have tested positive on a test approved by the TGA, for the period that this result prevents them from attending a polling place or polling booth due to a State or Territory health order. This may include, but is not limited to, a rapid antigen test (also known as a RAT test) and polymerase chain reaction tests (also known as a PCR test), and other tests that are developed until the provisions self-repeal on 31 December 2022.

23.          This is to support the integrity of this voting method by ensuring any testing method has undergone a comprehensive and robust testing process of Australia’s regulator of therapeutic goods, and to ensure those who are accessing this temporary service have a genuine need to so.

24.          New subsection 202AFA(3) provides that, before making an instrument, the Electoral Commissioner must notify the Prime Minister and the Leader of the Opposition in the House of Representatives in writing, including the reasons why it is necessary to make the instrument and what measures are proposed to ensure the integrity of the use of the secure telephone method. This ensures that the Electoral Commissioner’s decision to allow secure telephone voting for coronavirus affected individuals is considered and well-justified. For instance, the Electoral Commissioner may outline any fraud prevention controls; any scrutineering mechanisms available to oversee the accurate transcription of voting instructions given orally by coronavirus affected individuals; and any privacy protections that ensure that scrutineers cannot know the identities of voters.

25.          New subsection 202AFA(4) requires the legislative instrument made under new section 202AFA be published by the Electoral Commissioner on the Electoral Commission’s website and in any other way the Electoral Commissioner considers appropriate. This ensures the expansion of the existing secure telephone voting method is well communicated to affected persons. Other methods for making the instrument known may for instance include direct communication to registered political parties. The modification instrument must also be published on the Federal Register of Legislation. This ensures that there is a publicly accessible source of reliable information available to communicate the particulars of any legislative instrument.

26.          New subsection 202AFA(5) provides that despite section 28 of the Electoral Act, the Electoral Commissioner may not delegate a power or function under this section.

27.          New subsection 202AFA(6) relates to the application and time period of secure telephone voting for coronavirus affected individuals. New subsection 202AFA(6) provides that section 202AFA, the d efinition of electronically assisted voting method in section 202AA and subsections 202AB(1B), (2A), and (7 ) are to be repealed at the end of 31 December 2022. This timeframe is to support the safe and effective operation of electoral events in 2022.

28.          Providing eligible voters that are coronavirus affected individuals with the ability to vote through secure telephone voting provides public confidence in the safety of voting through coronavirus affected individuals not being required to attend a polling place or booth to vote in person and potentially compromising the safety of other voters.

29.          These amendments make provisions under the Electoral Act for contingency arrangements to be put in place, should they be required, to assist the AEC to conduct safe, efficient and timely elections within a COVID-19 operating environment, and support the ongoing the resilience of Australia’s democracy.